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N E W 

atjrtligemmt of t]&e %m, 

BY MATTHEW BACON, 

OF THE MIDDLE TEMPLE, ESQ. 



THE SEVENTH EDITION, CORRECTED; 

WITH LARGE ADDITIONS, INCLUDING THE LATEST S'tATUTES AND AUTIIOBITIFS. 
VOLUM_ES II. III. AND IV. (EXCEPT THE ADDENDA,) 

By sir henry GWILLIM, 

OF THE MIDDLE TEMPLE, KNIGHT ; 
LATE ONE OF THE JUDGES OF HIS MAJESTY'S SUPREME COURT 

AT MADRAS. » 



VOLUMES I. V. VI. VII. AND VIII. AND THE ADDENDA TO Tilt: 
OTHER VOLUMES, 

By CHARLES EDWARD DODD, 

OF THE INNER TEMPLE, ESQ. BARRISTER AT LAW. 



IN EIGHT VOLUMES. ,^5 



VOL. L ^\>\. 



^\. 



LONDON: 

PRINTED BY A. STRAHAN, 

LAW-PRINTER TO THE KINg's MOST EXCELLENT MAJESTY; 

FOR J. AND W. T. CLARKE; LONGMAN, REES, ORME, BROWN, AND GREEN; 
T. CADELL; J. RICHARDSON ; J.M.RICHARDSON; R.SCIIOLEY; C. J. G. AND F. 

rivington; Baldwin and cradock; w. walker; saunders and benning ; 

A. MAXWELL ; S. sweet ; H. BUTTERWORTH ; STEVENS AND SON^ G. WILSON ; 

e. Hodgson; r. pheney ; j. richards; e. nunn ; and a. and r. spottiswoode. 

1832. 



TO 

HENRY, 
BARON BROUGHAM AND VAUX, 

OF BROUGHAM, IN THE COUNTY OF WESTMORLAND, 
LORD HIGH CHANCELLOR OF GREAT BRITAIN, 

TliriS EDITION 

OF 

BACON'S ABRIDGEMENT OF THE LAW 

IS, 

(with his permission,) 
most respectfully dedicated by the editor, 

CHARLES EDWARD DODD. 

Temple, N^wemhcr, 1831. 



A 3 



PREFACE 



THIS SEVENTH EDITION. 



The last edition of Bacon's Abridgement was published 
in 1807; but that edition was merely a reprint of the 
fifth edition, published in 1798. The task, therefore, 
devolved on the Editors of the present edition, of in- 
corporating into the various titles of the work the 
decisions and statutes which, during thirty-three years, 
have so materially qualified, confirmed, and reversed 
the law as laid down in the last corrected edition. 
To the profession, for whom the work is designed, 
the extent and labour of this task will in a great de- 
gree account for the delay which has occurred in the 
publication of the present edition. The second, third, 
and fourth volumes were prepared by the former Editor, 
Sir Henri/ GwilUm, above ten years since, and were 
then printed ; but his ill state of health preventing 
his proceeding with the work, the completion of it was 
entrusted, several years ago, to the present Editor, who is. 
responsible for the first, fifth, sixth, seventh, and eighth 
volumes, and for the " Addenda," which it became 
indispensable to append to the three volumes printed 
by Sir Henry Gwillim. The improvements made by that 
gentleman in the edition of 1798, in correcting and 
verifying the references, in retrenching repetitions and 
redundancies, in expunging unintelligible passages, and 

A 4 generally,. 



Viii PREFACE TO THIS EDITION". 

generally, in purifying and perfecting the text, left 
comparatively little to be done by the Editors of this 
edition, except (what indeed was of itself difficulty and 
toil sufficient) the introduction into the work of the 
decisions pronounced by the several courts and of the 
statutes enacted since the edition of 1798. In exe- 
cuting this task, in the five volumes for which he is 
answerable, the present Editor has endeavoured to 
adapt the new matter to the old text in the moht 
convenient and suitable shape, so that the text and 
notes may present a connected and accurate view of 
the former state of the law, of the changes it has under- 
gone, and of its condition at this day on the various 
subjects treated of. Where the new matter introduced 
is short, where it forms a concise qualification, confirm- 
ation, or contradiction of the old text, it is generally 
inserted in the shape of a note, in which form the 
Editor has also carefully printed all observations or 
inferences not resting on the certain authority of de- 
cided cases. Where, however, the additions, whether 
of adjudications or statutes, are of considerable extent, 
it seemed more convenient to engraft them into the 
text of the work than to crowd them into the less 
convenient form and the minute type of notes. In all 
cases, whether they occur in the body of the work or 
in the notes, the additions to this edition are carefully 
distinguished by being inserted within these marks |[ ||, 
a mark used both by Sir Henry Gwillim in the three 
volumes which he edited, and by the present Editor 
in the five volumes for which he has stated himself 
to be responsible. The marks [ ] distinguish the 
additions made by Sir Henry Gwillim in the edition of 
1798, and the marks *, t, t, indicate the labours of 
former editors. 

The Editor has in some instances availed himself of 
extracts from Treatises of acknowledged accuracy or 

authority 



PREFACE TO THIS EDITION. IX 

authority on the subjects under consideration. Where 
the result of a series of decisions has been concisely 
stated by a text writer intimately acquainted with the 
particular branch of law, the Editor could not hope to 
improve on such an abridgement either in accuracy or 
perspicuity. He believes that in all such cases he has 
acknowledged the obligation by reference to the author 
to whom it is incurred. 

It did not fall within the scope of the Editor's duty 
to render the work a complete modern abridgement of 
the law, desirable and useful as such a work might be 
to the profession. He has, therefore, on the one hand, 
neither added new titles to the work, nor has he, on 
the other, felt at liberty to expunge matter Oh the 
ground of its having grown obsolete and useless, or 
of its being now only useful to the historical and curious 
enquirer. Of this description must be considered a 
great part of titles " Appeal," " Papists and Popish 
Recusants," " Pr^munire," " Scandalum Magna- 
TUM," *' Summons and Severance," " Wager of 
Law," " Warranty." The Editor conceived himself 
to stand, as to this point, in a very different situation 
from the author of an original work. 

Though the Editor has introduced no new titles, he 
has inserted subdivisions of some of the heads, and has 
also, in some instances (as in titles " Agreement," 
"Annuity," "Bankrupt," "Legacies and Devises," 
" Stamps,") occasionally transposed and rearranged 
the matter, for the sake of greater perspicuity and 
facility of reference. He has been careful, however, 
not to confuse his own additions with the previous 
text of the book, but has invariably marked, as above 
mentioned, whatever rests on no better authority than 
his own. 

Althougli 



X PREFACE TO THIS EDITION. 

Although the Editor has endeavoured to consult 
l)revity in tlie additions as much as was consistent with 
perspicuity, and with the style of dissertation in which 
the Abridgement is written, the work has necessarily 
been enlarged by the addition of a volume, and by 
much increasing the bulk of all the volumes. The 
extent of the additions to this edition may be estimated 
from the fact, that the cases in the index are about 
twice the number of those in the former edition, and 
there is an increase of about fifteen hundred pages. 

The Editor begs to acknowledge here some very 
useful assistance which he received from Mr. Blanshard^ 
Barrister at Law (now of York,) in preparing the titles 
in the fifth volume from " Legacies and Devises " 
to " Monopoly," both inclusive. 

The Editor cannot send the work forth to the pro- 
fession without earnestly bespeaking their candid indul- 
gence for its errors, omissions, and imperfections. He 
can hardly venture to hope that these are not numerous 
in a work so extensive, so difficult, and so multifarious, 
which has often exceeded the Editor's powers and has 
always tasked his industry, and which has been neces- 
sarily completed in the intervals of his professional 
avocations as a Special Pleader and a Barrister. 



C. E. DODD. 



King's Bench Walk, Temple, 
Michaelmas Term, 1831. 



PREFACE 



THE FIFTH EDITION. 



It was the hard fate of the excellent writings of the 
late Chief Baron Gilbert, to lose their Author, be- 
fore they had received his last corrections and improve- 
ments, and in that unfinished state to be thrust into the 
world, without even the common care of an ordinary 
editor. Those invaluable tracts were for the most part 
published not only with all their original imperfections, 
without any attempt to supply their defects, or explain 
or correct what seemed in them perplexed or erroneous ; 
but with all the improprieties and inaccuracies which 
the ignorance and neglect of the amanuenses, whom 
the Author's infirmities compelled him to employ, could 
accumulate upon them. 

Some of those tracts, it is well known, fell into the 
hands of the Compiler of the present work, and from 
them the materials of the greater part of it, as far as 
the title "Simony," were collected. Unfortunately, our 
Compiler had not the most happy dispositions for the 
work he had undertaken, nor were those parts of the 
learned Judge's writings which appeared in the New 
Abridgement much better prepared to meet the public 
eye, than the other tracts, which had been published by 
persons to whom chance or an undistinguishing choice 
had committed the inspection of the press. 



In 



Xii PREFACE TO THE FIFTH EDITION. 

In the course of the work, Mr. Bacon seems to have 
made different use of the materials that lay before him, 
sometimes taking the tracts at length, sometimes giving 
only extracts from them : but whether he inserted the 
whole of any tract, or only a part of it, we have 
reason to think, he inserted it just as he found it. If 
the Author, in different treatises, in order to make 
each treatise perfect within itself, introduced the same 
matter conveyed in the same expression, the Com- 
piler implicitly copied it, and under different titles of 
his work introduced the same passages to the extent of 
several pages. If the manuscripts were in any part 
defective, if the subjects were but partially treated of 
in them*, the titles which related to those subjects were 
left equally defective in the Abridgement. The Com- 
piler seemed to have as little inclination to supply the 
deficiences of his Author, as he had sagacity to mark 
or correct his errors. 

With these defects and redundancies the work has 
passed through three subsequent editions ; the only 
anxiety discoverable in the later editors being to crowd 
it with reference to cases inapposite to the point in the 
text, and which, at the best, had only some relation to 
remote branches of the general subject. 

In preparing the present Edition for the press, it has 
been the first care of the Editor to retrench what was 
redundant in the work, and to expunge what appeared 
to him impertinent In retrenching, he has substituted 
reference for repetition ; and where the same matter 
which had occurred under one title seemed naturally to 
fall under and belong to another, he has referred to the 

* It should seem, from some manuscript treatises of this author in 
the possession of Mr. Ilargrave, which have never appeared in print, 
tliat lie had formed and actually executed the comprehensive plan 
of wriimg distinct treatises upon every branch of the law, except 
the criminal jurisprudence. 

preceding 



PREFACE TO THE FIFTH EDITION. XIU 

preceding title, instead of introducing it again. In ex- 
punging, he has not indulged himself in any arbitrary 
or capricious licence ; nor has he presumed to strike out 
one supervenient authority of a later editor, before he 
had satisfied himself by careful examination that it had 
no pretensions to the place it affected to occupy. 

In the original text he has rarely ventured to make 
any alteration, except where it was manifestly corrupted 
by the carelessness of the copyist or of the press, or 
rendered perplexed by the want of due attention to 
punctuation. One or two passages, indeed, where the 
meaning could not be collected either from the ex- 
pression or the references, he thought himself at liberty 
to expunge. Conjectural emendation is not admissible 
in a work of this kind ; and he trusts no man will com- 
plain of the loss of nonsense. 

He has attempted to mark, and guard his readers 
against, the mistakes of the author : but he is sensible 
that many, too many, erroneous passages have been 
suffered to pass without observation. In the course of 
so long a work, it cannot be expected that the exertions 
of the mind should be always equal, or that it should 
always be alike disposed to proceed in the task it had 
undertaken. It must occasionally sicken at some parts 
of the labour as beneath its attention, and shrink fi-om 
others as beyond its powers. It is well known that the 
most obvious errors sometimes most easily escape de- 
tection. In reading, every man must have felt that his 
mind is sometimes more attentive to its own precon- 
ceptions on the subject, than to the ideas of the author j 
and the better it is satisfied with the rectitude of the 
former, the more steadily it pursues them, and the less 
sensible it is of the aberrations of the latter. The 
form, too, in which error presents itself to us, may help 
to facilitate its escape : it is more likely to pass silently 
and unobserved when proposed in the form of a simple 

affirmation, 



xiV PREFACE TO THE FIFTH EDITION. 

affirmation, than when it challenges our enquiry in that 
of an interrogation. We often readily admit upon a 
statement what we should instantly deny, if it were 
offered to us in the way of question. 

It should be observed, that, even where the Editor 
has detected error, he has not always immediately 
apprised his reader of it : he has sometimes subjoined 
his remarks upon the erroneous passage at the end of 
the division where it has occurred: he has at other 
times left its confutation to its inconsistency with the 
better-considered and more recent determinations which 
he has afterwards introduced. 

In the additions he was to make, he found it necessary 
to prescribe to himself some limitations : he therefore 
in general attempted no more than to fill up the chasms 
that were left under those general divisions into which 
lie found the work already disposed, and then to engraft 
upon the whole the later decisions. He has indeed given 
two new titles, viz. " Pischary," and " Set-off ; " and 
he knows that he might have given others, as the work is 
at present far from a complete abridgement of the law. 
But he had neither time nor encouragement to go far- 
ther. Besides, much of the learning which is wanting, 
is to be met with in books that are in every one's hand: 
and what was to have been gleaned from other writings 
of the same kind, though it might have increased the 
bulk of the work, would not have added to its intrinsic 
value, or have done any credit to the industry or in- 
tegrity of the Editor. If there should be some who 
complain that more might have been done, there will 
be others, he fears, who will say, perhaps with more 
justice, that much of that which has been done might 
have been spared. 

As the Abridgement is written in the style of dissert- 
ation, he has in his additions availed himself largely of 

those 



PREFACE TO THE FIFTH EDITION. XV 

those tracts which have been pubHshed upon different 
parts of the law, and received the approbation of the 
profession. He has been in general careful, whenever 
he has made an extract from any of those tracts, to 
acknowledge the obligation by reference to the work 
itself. If he has in any instance (and he may have done 
so in many) neglected to make such reference, the 
author may be assured that it was by mere accident or 
inadvertency, and not from any design to take to him- 
self the credit of another man's labours. But wherever 
such omission may have been made, let not the author 
be under any uneasiness : the world will too easily 
distinguish what properly belongs to the Editor. 

He thought himself at full liberty to transplant into 
the work as much of the Chief Baron Gilberts tracts 
as he had occasion for : it was in truth only re-uniting 
disjointed members, many parts of the work itself being 
only parts of several of those tracts. One of the learned 
Judge's treatises, viz. the Treatise upon the Doctrine of 
Remainders, from which the collections in the Abridge- 
ment under that title were extracted, he has been enabled 
to give entire by the kindness of Mr. Hargrave. The 
manuscript had been purchased by that gentleman at no 
inconsiderable price ; but, disdaining all private con- 
siderations where the interests of that profession, of 
which he is so distinguished an ornament, seemed in 
any degree concerned, he made a voluntary tender of 

to the Editor, as soon as he was informed that he 
was engaged in preparing another edition of the present 
work. By this generous act, Mr. Hargrave has highly 
flattered the Editor, and has added one more to the 
many obligations his profession were already under 
to him. 

The Editor has been anxious to separate his own 
additions, and those of preceding editors, from the 
original work. Whatever, therefore, he is responsible 

for. 



XVi PREFACE TO THE FIFTH EDITION. 

for, is included between crotchets, thus [ ] ; whilst the 
insertions of the other editors are distinguished by one 
or other of these marks, *, t, t. It is well known 
that Mr. Bacon did not live to carry the work any 
farther than to the title *• Sheriff," inclusive, and that 
the remainder was added by Mr. Serjeant Sayer and 
Mr. Rujfhead. It was not thought necessary to give 
any distinguishing marks to this latter part : it seemed 
sufficient to give this intimation of it. 

HENRY GWILLIM. 

Boswell-Court, 
Michaelmas Term, 1 797. 



ABATEMENT. 



ABATEMENT, in the general acceptation of the word, Gilb. Hist, 
signifies a plea put in by the defendant, in which he shews fpor'the^Jeri- 
cause to the court why he should not be empleaded ; or, if yation and dif- 
empleaded, not in the manner and form he now is. ferent senses 

of the word 
Abatement in our law, see sBl. Comm. 168. Co. Litt. 134. b. 181. a. 242. b. 271. a. 277. a. 
Finch's Law, 195. Pleas to the jurisdiction, and to the person of the plaintiffj are pleas in 
disability, and only in the nature of pleas in abatement. Pleas in abatement, strictly such, are 
pleas to the writ. Finch's Law, 362. 3 Black. Comm. 301.] For the order of pleading, see 
title Pleas and Pleadings, (A). 

We will consider this title in the following order, though 
several of its divisions are more largely treated of under their 
proper heads. 

(A) Of Pleas to the Jurisdiction of the Court. 

(B) To the Person of the Plaintiff. 

1. Outlaw?!/. 

2. Excommunication. 
S. Alienage. 

4. Premunire. 

5. Popish Recusancy. 
II 6. Coverture.^ 

(C) Of Pleas in Abatement with respect to the Per- 
son of the Defendant ; and herein of privileged 
Persons. 

(D) Of Misnomer and want of Addition. 

(E) Of Abatement by the Demise of the King. 

(F) By the Death of Parties. 

(G) By reason of Coverture. 
(H) By a Defect in the Writ. 

(I) By the Writ's not agreeing with the Count. 

Vol. I. B (K) Where 



ABATEMENT. 

(K) Where the Writ is abated de Facto, or only 
abateable. 

(L) Where the Writ shall abate in toto, or in Part. 

(M) Where it shall abate by Reason of another Action 
brought for the same Thing. 

(N) Where a Person may plead in Bar, or in Abate- 
ment. 

[(O) Dilatory Pleas, how restrained.] 

(P) Of the Manner of pleading in Abatement, and 
the Proceedings and Judgment on such Plea. 

[(Q) Of the Writ by Journies Accompts.] 

(R) Foreign Plea. 



(A) Of Pleas to the Jurisdiction of the Court. 

Gilb. Hist. A PLEA to the jurisdiction of the Court must be put in be- 

^•^- '^"^' fore (a) any imparlance, for by craving leave to imparl, the 

7 Barnes defendant submits to the jurisdiction. 

334. [(a) But after a general special imparlance, that is, an imparlance with a general saving 
of all manner of exceptions, it seems that it may be pleaded : but the granting of such an im- 

Cirlance is discretionary in the court, and it cannot be had but by special motion. Grant v. 
ord Sondes, 2 Black. R. 1094. Wentworth v. Squib, 1 Lutw. 46. 12 Mod. 529. S. C. Clap- 
ham V. Lenthal, Hardr. 365. Barrington v. Venables, Raym. 34.] ||And if the defendant 
plead such a plea after a special imparlance, with a saving only of all exceptions to the writ,&c. 
though the plea is demurrable it is not a nullity. Godefroy v. Jay, 6 Bing. 616.11 

The defendant must plead in propria perso?id, for he cannot 

plead by attorney without leave of the Court first had, which 

leave acknowledges the jurisdiction; for the attorney is an officer 

of the Court ; and if defendant puts in a plea by an officer of the 

Court, that plea must be supposed to be put in by leave of the 

Court. 

Co. Litt. 127. He must make but half defence; for if he makes full defence 

Gilb, Hist. mtando et vhi curia consideraveriL &c. he submits to the iurisdic- 
C. P. 188. See ;:. c ^\ r> .. J ^ 

Ventr.354. tion of the Court. 

Alexander v. ijBut a plea which goes no farther than " defending the force 

Mawman, and injury when, Src." is not a full defence, the " 4"^" implying a 

w'ilk * ^ ^° ^"^^ ^^ * ^^^ defence according as the one or the other is re> 

VVilIi?mI', quisite.ll 

8 Term R. 63 1. ; and 3 Bos. & Pull. 9. (a) , 

Doctr. PI. 224. Every plea to the jurisdiction must state another jurisdiction. 

Fabrigas, Cowp. 172. Earl of Derby v. Duke of Athol, 1 Ves. 203. 2Ves.357. Rex v. 
Johnson, 6 East, 585. 

Attorney Ge- [A plea that the suit is of visitatorial cognizance, must shew 

the 



(B) To the Person of the Plaintiff. S 

the extent of the visitor's authority, and aver that he is able to neral v. Tal- 
do complete justice.] ^Atk.IS. 

S. C. Green v. Rutherforth, 1 Ves. 474. and Rex v. Bland, B. R. Mich. 14 G. 2. there cited. 

See tit. Courts, and their Jurisdiction in general. 

(B) To the Person of the Plaintifil 

1. Of Outlawry, 

/^UTLAWRY in the plaintiff is a good plea in abatement, Gilb. Hist. 
for he thereby loses his liberam legem, and is out of the pro- C. P. I96, 
tection of the law; for not having been amenable to the law, he Jq!* ^ l^m* 
ought not to have any privilege or benefit from ^t. 12.' But no ' 

man shall be said to be outlawed till the return of the exigent. Bro. Nonability, 25. 28. 
Ass. 49. Dyer, 222. 

But outlawry does not entirely abate the writ, but is only a Co. Litt. 128. 
temporary impediment that disables the plaintiff from proceed- q°j ^-^^ q^ 
ing ; for upon obtaining a charter of pardon, or reversing the 97. * 
outlawry, he is restored to his law, and can oblige the defendant 
to plead to the same writ. 

Outlawry in a personal action goes only to personal actions, in Doctr. PL 597. 
respect of the person ; but outlawry in felony goes to actions ge- *^^^^^ ^^ ^' 
nerally. 

See further tit. Outlawry (D), 3. 2. 3. 

II And as to pleading outlawry in equity, see ibid, and 1 Sim. 
& Stu. 225. 720. 1 Ves.& B. 184. 1 Vern.l84.|| 

2. Excommunication. 
See tit. Excommunication (C), (D). 

3. Alienage. 
See tit. Aliens (D), (E). 

4. Premunire. 
Persons attainted of a premunire are incapable of bringing Gilb. Hist, 
any action, for they are out of the protection of the law. ^- V; ^2,^* 

See tit. Premunire. Co. Litt. 129. 

5. Popish Recusancy. 

This disability of popish recusancy convict is by virtue of the ^ p*H!f'* 

statute 3 Jac. c. 5. which disables to all intents, ^c. except where l j Ray^, 

the party sues for lands, tenements, leases, annuities, rents, and 245. 5 Lev. 

hereditaments, or the issues or pi'ofits thereof, which are not 308. 8 Mod. 

to be seised into the hands of the kinff, his heirs or successors. ^\ \^'^' ^ 

o' li.ntr. 19. bee 

18G.3. C. 60. 31G.3. C.32. 43G.3. C.30. 

See tit. Popish Recusancy. 

1)6. Coverture. Seepos/.H 

B 2 (C) Of 



4 ABATEMENT. 

(C) Of Pleas in Abatement with respect to the 
Person of the Defendant j and herein of privileged 
Persons. 

2 Mod. 297. 'T^HE officers of each court enjoy the privilege of being sued 
Vaug. 155. J- jjj^jy jj^ those courts to which they respectively belong; the 
2 Roll. Abr. reason whereof is, because of the duty they are under of attend- 
272. Lut. 44. ing those courts, and lest their clients* causes should suffer if 
639. 2 Inst, they were drawn to answer to actions in other courts. 

551. 4 Inst. 

71,72. Crom- Jur. Courts, 11. Gilb. Hist. C.P. 209. 212. What persons are privileged, 
vide head of Privilege, Vol. VI., and for precedents of pleas of privilege, vide Thomp. 4. Rob. 
Ent. 199. Rast. Ent. 106. 178. 472. Brownl. 161. 167. 168. Hern. 3. 3 Inst. Clericalis, 

32 35. "Where they are not obliged to put in special bail ; and where bail must be put in 

when they sue, vide head of Bail in Civil Causes. ||As to pleas to the person of the defendant 
in courts of equity, see Beames's Plead. Eq. 129., &c.|| 

Lutvir. 44. 639. [Whenever therefore an attorney is sued out of his own court, 

Bro. Traverse, jjg jj^^y say that he is attorney, Sf-c. of another court, and conclude 

with wide non intendii qicod cur,, 8^c. hie placit. jn-cedict. versus cum 

cognoscae velit aut debeat, Sfc. But the plaintiff may reply that 

he is a husbandman, Src. in the country, and traverse his being 

an attorney. 

o Wils 42. ^^^ privilege is not the privilege of the officers, but of the 

228. 1 Sir. suitors ; and attendance being the ground and foundation of 

546. 4 Bur. it, it must be alleged that the officers are actually attendant 

2109. Andr. jj^ their respective courts, otherwise the plea will not be al- 

45. 1 Bos. & 1 1 -, ^ ^ 

P«1.4. llSee Jowed.] 

head Privilege (B), Vol. VI.|| 

Saund. 67, 68. But the plaintiff must have the same remedy against the officer 

r^Mv^'H^ ^^^ *" ^^^ ^^^ court, as in that where he sues him ; for if money be 

Q p 209 attached by foreign attachment in the sheriff's court of London, 

210. Co7i/r. <^he officer shall not have his privilege; because in that case the 

Lodge's case, plaintiff would be remediless. 

2 Leon. 156. 

Dy. 217. a. Watkins v. Hews, 1 Sid. 362. ; [and vide Ridge v. Hardcastle, s Term R. 417. acc^ 

Saund. 97. So, if a writ of entry, or other real action, be brought against 

r P Qi n' Sn ^" attorney of the King's Bench, he cannot plead his privilege ; 
if an attorney* because if this should be allowed, the plaintiff would have a right 
of the Com- without a remedy ; for the King's Bench hath not cognizance of 
mon Pleas be real actions, 
sued in an ap- 
peal, he shall not have his privilege ; for his own court hath no cognizance of this action ; 
nor if sued as baU. Rep. & Cas. Pract. C. P. 64. Gilb. Hist. C. P. 210. 

Gardner v. [The jurisdiction of the court of conscience for Westminster ex- 

4^°?V?ltshire ^^"^^ '° attorn ies; but not that of the county comt oi Middlesex, 
V. Lloyd, o'' of the London court of conscience ; and a defendant who re- 

Dougl. 581. sides within the jurisdiction of this last court is not entitled to 
?"d *^^ liw. ^^^^ benefit of the statute of 23 G. 2. c. 33., if the plaintiff is an 
Board v. Par- attorney (a), unless the plaintiff wave his privilege by declaring 
ker, 7 East, as a common person.] 

35. Vid. conlr. Silk v. Kennet, 3 Burr. 1583. and 382. notes, (a) Tagg v. Madan, 1 Bos. & 
Pull. 629. Pivrker v. Vaughan, 2 Bos. & Pull. 29. 

The 



(C) To tJte Perso7i of Ihe Defendant. S 

The privileges which the courts indulge their officers with, is Hob. 177. 
restrained so those suits only which they bring, or which are ^^ \{^^ 
brought against them in their own right; for if they sue or are c. P. 211. 
sued as executors or administrators, they then represent common 2 Roll. Abr. 
persons, and are to have no privilege. U^- P^-^s* 

17Vin. Abr. 517. pl.2. Vent. 299. Godb. 10. pi. 13. Dy. 577. pi. 30. Latch. 199. Brownl 
3V. 47. 12Mod.516. Ld.Raym. 533. Salk. 2. pl.4. 7. pi. 18. 2 Sid. 157. Dy. 24. 150. in 
marg. Sav, 20. pi. 49. 

So, if an officer of one court sue an officer of another court, Gilb. Hist, 
the defendant shall not have his privilege; for the attendance of q^^^qI' 
the plaintiff is as necessary in his court, as that of the defendant pi 95, 
in his : and therefore the cause is legally attached in the court Brownl. 37. 

where the plaintiff is an officer, (a) [2 Black. R. 

^ ^ ' 1325. ||See 

9 Price, 16.11 (^) If^ privilege be pleaded to privilege, the court will not determine it on 
motion to set aside the plea, but oblige the party to demur. 2 Str. 857. 1 Bl. Rep. 34.] ||And, 
where one attorney sued another of the same court by attachment of privilege and held him to 
bail, the Court of K. B. stayed the proceedings upon motion. However, considering this mode 
of application as a substitute for a plea in abatement, they did so without costs. Barber v. 
Palmer, 6 Term R. 524. Nicholls v. Earie, 8 Term R. 895.|| 

So, if a privileged person bring a joint action, or, if an action q\\\,^ Hist, 
be brought against him and others (i), he shall not have his pri- 212. Dyer, 
vilege : but this is to be understood where the action is joint, and ^77. p. 30. 
cannot be severed ; for if the action can he severed, without 2 Roll Abr 
doing any injury, the officer shall have his privilege. Qu. 275. 2 Lev! 

129. Vent. 298, 299. j|See Robarts v. Mason, 1 Taunt. 254. {b) But an attorney sued 
jointly with a person having privilege of parliament, does not lose his privilege. Ramsbottom 
v. Harcourt, 4 Maul. & S. 585.1| 

[So in equity, if a suit be instituted against different persons, Mit. Eq. 
some of whom have privilege, and some not (c), or, if one de- ^l* ^ ^f/ 
fendant be not amenable to the particular jurisdiction, the plea Univerntu 
of privilege will not be allowed.] (K), p. 3. 

(c) Hutton, 69. 

An officer shall not have his privilege against the king {d) ; for Fortesc. 342. 
as the executive power is lodged in the king, it would be unrea- j"', g^o'n 
sonable that his court, which gives relief to private persons, should ^^J. 274. 
protect any subject from being brought to justice for offending Gilb. Hist. 

against the laws, which concern the whole commonwealth. C. P. 208. 

°_ {d) But man 

action qui tarn at the suit of an informer, he shall have his privilege. Lil. Reg. 7. 3 Lev. 598. 
Lutw. 193. 

If an attorney of the Common Pleas be in custodia maresch. for , ^ n * -eu^ 
/• I -1 1 • f ^ 1 111- • •! / \ (^) But II he 

want 01 bail at the suit 01 A.^ he may plead his privilege, {e) i,e in cusiodid 

"mareschal, at the suit of A., and B. declare against him in cmtodid viarcschal. if he has 
waved his privilege as to A., he cannot take advantage of it against B. For this vide 2 Roll. 
Abr. 275. pi. 7. Salk. 1 pi. 3. 5 Mod. 3ip. sLev. 345. Ld. Raym. 135. {[l Stra. 191. 4 Barn. 
& A. 88.|| 

After a general imparlance, an officer cannot plead his privi- Bro. Priv. 25. 

lege [g)y because by imparling he affirms the jurisdiction of the S2 H.6, 7 

court ; but by the better opinion it seems, that after a special im- u"^" P" , 
1 ,•' 11I--.1 /j\ ^ Hard. 565. 

parlance he may plead his privilege, [h] Lutw. 46. 

Salk. 1. Str. 522. ||(g) If a plea in abatement be pleaded after a general imparlance, tiie plain- 
tiff may either demur to it generally, or treat it as a nullity, and sign judgment as for want of 

B 3 a plea. 



^ ABATEMENT. 

a plea. Duddle v. WUson, 6 Term R. 369. Doughty v. Lascelles, 4 Term R. 520. But if 
the bill is filed in vacation entitled of the preceding term, the defendant may plead in abatement 
within the first four days of the next term. Holme v. Daiby, 5 Barn. & A. 259. 1 Chitt. R. 
704.; and see 2 Will. Saund. 2. no^d. (5th edit.)|| (A) [By a special imparlance, in this 
case, must be understood a special general imparlance. Vide tupra (A), notes.] Plea of 
privilege without affidavit set aside. 2 Str.738. ||See Tidd. 640. (9th edit.), and /?04/.(P).|| 
It must be pleaded, it cannot be allowed on motion. 2 Salk. 544. 1 Wils. 306.] \^Sed vide 
xuprk Barber v. Palmer, 6 Term R. 524. ; and Tidd's Prac. 81. (t)th edit.)|l 

s Black. R. [An attorney who is arrested by capias on a special original 

'°Sh ^^^^^^^ out of the same court, is not entitled to his discharge on serving 

the sheriff with a writ of privilege, but must plead the privilege 

in abatement. 
Comerford jjg n^^y plead it as well to an action on a bill of exchange, as 

Doucl 312. ^^ ^"y other personal action. 

Fortesc. 343, An attorney has not any privilege to be sued in Middlesex 
2027 * ^^^' **"^y * ^^ ^^ enough that he be sued in his own court] 
Salk. 1. pi. 2. In an action against B. he pleaded quod ipse est unus attomat. 
Peaso V. Par- ^^^ domi?ii regis de B. without saying fuit tempore impetrationis 
lece should be ^'"^'^ (^) * ^"^ ^ respondeat ouster was awarded, 
pleaded — provi patet per recordam. Ibid. \\{a) The privilege attaches only upon prac- 
tising attornies. See the ride of Court of 1654. It is founded upon a presumption that the 
attorney is already in court attending his duty, so that the issuing of process merely to bring 
him there would be nugatory. But this reason does not apply to an attorney who is not prac- 
tising at the time. Brooke v Bryant, 7 Term R. 25. Dyson v. Birch, 1 Bos. & Pull. 4. ; and 
see S Maul. & S. 605.|| 

Stokes V. II The courts will take notice of the privileges of their officers, 

™"'"» so far as to support a plea, notwithstanding little informalities or 

' ' want of precision, provided enough appear in it to shew that the 
defendant is entitled to privilege. 
(h) 1 Lut*r. Under tlie head of Pleas in Abatement to the person of the 

23. 5 Inst. defendant, may also be included coverture in the defendant (6), 
(c) i Inst CI °^ ^^^ ^^ plaintiffs or defendants, suing or being sued as hus- 
69. (d) Id. 51. band and wife, are not married (c), or any other plea for want of 
Rastal.325.a. proper parties, as that there is an executor (rf), administrator {e), 
(<?) 3 Inst. CI. or other person (h) not named. 
53. Rastal, r v / 

824. (g) 3 Inst- CI. 53. 119. 1 Lutw. 696. ; and see 1 East, 634. 

{h) 2 Will. If an action be brought for a tort by one of several joint 
i^e" 1 Ve\ tenants or tenants in common, the defendant must plead the non- 
167! 1 Ld. joinder of the others in abatement, or he cannot take advantage of 
Raym. 127. the objection. (Ji) 

S Wils. 414. 

. , And so also, if an action on a contract is brought against one 

5 Burr. 2611. ^^ several joint contractors, the defendant can only take advan- 
2 Black. R. tage of the nonjoinder by plea in abatement, {i) 
»47. 5 Term R.649. 1 Will. Saund. 291. c. d. (5th edit.) 

*) Moo. & The defendant cannot, however, plead a secret partnership in 

^alk. 88. abatement, {k) 
\ Stark. Ca. 338. 5 /J. 8. ; ted vide contrh, 5 Taunt. 609. 1 Marsh. 246. 

If an action be brought against a carrier in case for not safely 

carrying 



Mi 



(D) Of Misnomer, and want of Addition, 7 

carrying goods, the defendant may plead in abatement that his / v ^p p 
partners ought also to have been sued, (a) ggg 2 New 

R. 565. ; but see 5 Term R. 649. 2Chitt. R. 1. 6M00. 141. 3Brod.&B.54. 2Marsh.485.; 
from which it seems that if the action on the case is grounded on the custom of the realm, it 
is otherwise; and see 1 Will. Saund. 291. e. (5th edit.) 

If an action of debt be brought on the stat. 9 Ann. c. 14. to 
recover back money won at play, the defendant may plead in 
abatement that the money was due from others not named as well (i) 7 Terra R. 
as himself, {b) 257. 

In these cases, the defendant, if required, must deliver to the i<^) ^ Bam. & 
plaintiff the places of abode, and additions of the parties jointly i^Younce 
liable, or the Court of King's Bench will set aside the plea, (c) ^ j 257. 

In an action on the case against a common carrier, for not (d) 2 Chitt. 
safely carrying a passenger, the defendant cannot plead in abate- ^- ^•' ^^ '®® 
ment the nonjoinder of a co-proprietor. (d)\\ g^g g j^^^^^ 

141. 5Brod.&B. 54, 9Price,408. 
See further tit. Attorney and Privilege. 

(D) Of Misnomer, and want of Addition. 

J^ISNOMER is a good plea in abatement ; for since names [(<?) It is'plead- 

are the only marks and indicia which human kind can ^^^^ only in 
understand each other by, if the name be omitted or mistaken, ^ 31^^^^' 
there is a complaint against nobody, [e) 1120.] j|That 

is where the process is not bailable. 7 Dow. & Ry. 258. Tidd, 44ff. (9th edit.) But if the 
defendant has been arrested by a wrong name, the court will set aside the proceedings. 
1 Marsh. 477. 4 Maule & S. 360. 1 Chitt. R. 282. ; sed vide 4 Barn. & C. 970. 3 Bing. 
296.; and discharge him if in custody. 2 Taunt. 399. 4 Maule & S.560. ; but see 1 Price, 
277. 391. 2 Price, 328. Tidd, 447. (9th edit.)]) 

But, though a defendant may, by pleading in abatement, take Finch. 565. 
advantage of a misnomer when there is a mistake in the writ or wh '^'e^K^h" ' 
declaration, as to the name of baptism or surname ; yet in such appearing by 
a plea he must set forth his right name, so as to give the plaintiff that name, or 
a better writ, {g) not taking ad- 

vantage of it, 
such mistake will be aided, vide tit. Error. Vide Yelv. 112. ||Tidd,447. 637. (9th edit.)|| 
Must, in setting forth his name, say, that by such name he was known at the time of the writ 
purchased. Skin. 620. pi. 17. Vide Salk. 7- pi. 17. Goulds. 86. (g) So, if he plead a mis- 
take in the addition, he must set forth his right addition. 2 Stra. 816. 10 Mod. 208. 
2Ld. Raym. 1178. 1541.] 

One defendant cannot plead misnomer of his companion ; for Lutw. 36. 
the other defendant may admit himself to be the person in the 
writ. 

The defendant, though his name be mistaken, is not obliged ^^f^* ^^^^* 
to take advantage of it ; and therefore if he be enipleaded by a pretended^**" 
wrong name, and afterwards empleaded by his right name, he himself to be 
may plead in bar the former judgment, and aver that he is una Earl of Buck- 
et cadcm persona. ingham, was 

arrested by 
the name of J. Villafs, armiger ; and on motion, the court gave him leave to put in bail, with- 
out joining in the recognizance, and thereby not estop himself. Vide Salk. 5. [)1. 7. Ld. Raym, 
64.249. 7 Mod. 58. Stra. 205. 2 Stra. 811. Ijlf a party make a bond by the name of j4. jff., 
of C. in the county of D., and in an original writ on the bond he is described accordingly, 
and is outlawed, he cannot reverse the outlawry on the ground that he was not conversant 
in C. in the county of Z)., and that there is no such place, for he is estopped by his bond. 
Bonner v. Wilkinson, 5 Barn. & A. 682.j| 

B 4 In 



8 ABATEMENT. 

rw» Cro. In case of felony at common law, if a person were indicted by 

Can 104. a wrong name, he could not plead mistwmer, but was obliged to 

« in»t*67o * p^^°^ '" ^^^ ^^^""y 5 ^°^ ^^^ ^"^' ^^^"^ ^^°'*" *^g^^"^^ *^^ p^^'y 

Sid. 4a Lite, present, it was thought that there could be no injury by the mis- 
R. 1. rtde nomeTi as there might be, where the party appeared by attorney ; 
head of J^ and felons generally co by no certain name, nor have they any 
nomer and n j i i •." • ° 

^daWan, and fixed habitation. 

9 Hawk. P.C. 186, 187.; that the party accused may take advantage of misnomer, or the want 
of additioH, bat yet must plead over to the felony ; but though such plea be found for him, he 
is not to be discharged, but must be indicted over again: neither shall such plea, if found 
against him, be peremptory, but he shall be tried on his plea in chief. |jBy 7 G. 4. c. 64. § 19. 
no indictment or information shall be abated by reason oC any dilatory plea of misnomer, or of 
want of addition or wrong addition, if the court shall be satisfied by affidavit of the truth of 
Buch plea ; but the court shall amend the indictment, &c. and call on the party to plead 
thercto.|] 

|]A plea of this But it is now necessary to set forth the state, place of abode* 
statute, and ^jj^ dignity of the person empleaded, lest an innocent person* 
tion had been ^y hi''^ving the same name with the real defendant, should 
given to the suffer ; therefore the 1 H. 5. c. 5. enacts, That in all personal ac- 
defendant tions, appeals, and indictments there shall be added to the 
cither in the names of the defendants their estates, degrees, mystery, and place 
writ or in the ©* abode. 

subsequent part of the declaration, was considered as a nullity by the Court of C. P. and the 
plaintiff haa leave to sign judgment. Gray v. Sidneff, 3 Bos. & Pull. 595. Murray v. Hub- 
l>art, 1 Bos. & Pull. 645. Or he might have moved to quash it. Wallace.v. Duchess of Cum- 
berland, 4TermR.371. Deshons v. Head, 7East,385.; and see 2 New R. 188. 4 Taunt. 
668.|| 

(a) Mistakes Additions (a), which are inducements to the action, must be 

in such addi- ^^de Use of; as, if one is liable as heir, he must be named heir: 

tions are good .^ • , i , 

objections in ^°» ^* ^^ executor, he must be named such. 

abatement both at law and in equity. Rast. 324. llH. 7. 11. Mitf. Eq. PI. 192. Pr. 

R^278. ^ ^ 

See further tit. Misnomer and Addition, (E) (F). 

(E) Of Abatement by the Demise of the King. 

Proceedings A T common law all patents of justices, commissions civil and 

^?i^ •"*t""" military, were determined by the death of the king ; and 

ation, m na- n -^ j j- • i i • i "^ t- • i i 

ture of a ouo ^11 suits depending m the kmg^s courts were discontinued, so that 

warranto, are the plaintiffs were obliged to commence new actions, or to have 

not abated by re-summons or attachment on the former processes, to bring the 

the crowru ° defendants in ; but to prevent the inconvenience, expense, and 

2 Stra. 782. delay, which this occasioned, were the statutes of 1 E. 6. cap. 7. 

\\ here the 7 & 8 W. S. cap. 27. § 21. and I Ann. st. 1. cap. 8. § 5. made, 

king brings a which vide under title Courts, and their Jurisdiction in 

wnt of error GENERAL, (C). 
in guare wipe- —> \ / 

dit, it abates by his death. 2 Stra. 837. Fort. 213. Fitzgib. 35, 36. Scire facias to repeal a 
grant of a market, is an original writ, and within the general words of the statute 1 E. 6. 
c. 7. and I Ann. c. 8. and does not abate. Stra. 43. ||By 11 G. 4. and 1 W. 4. c. 45. § 4. all 
commissions for taking affidavits in any court, and for taking recognizances of bail shall, 
notwithstanding the demise of the crow-n, remain in force during the pleasure of the suc- 
ceseor.U 

(F) Of 



(F) Of Abaiement by tJie Death of Parlies. 
(F) Of Abatement by the Death of Parties. 



TJERE the general rule to be observed is (a), that wherever 5 Mod. 249. 
the death of any party happens pending the writ, and yet the 2 Vent. 196. 
plea is in the same condition as if such party were living, there [„ ^^Qu^tof 
such death makes no alteration ; for, where the death of the equity in this 
parties makes no change of proceedings, it would be unreasonable respect, is 
that the surviving parties should make any alteration in the writ ; similar to that 
for if such writ and process were changed, it would set rights but ^^"^[j [^ ^^^_ 
in the same condition they were in at the death of the parties ; and ^^i ^t jaw. If 
it would be absurd that what made no alteration should change the interest of 

the writ and the process : and on this rule all the diversities turn. » par'y dying 

so determines 
that it can no longer affect the suit, and no person becomes entitled thereupon to the same 
interest, the suit does not abate. Or, if the interest of a party dying survives to another 
party ; as, if a bill is filed by or against trustees or executors, and one dies ; or by and against 
husband and wife in right of the wife,' and the husband dies, the proceedings do not abate. 
So, if a surviving party can sustain the suit, as in the case of several creditors plaintiffs on 
behalf of themselves and other creditors. For the persons remaining before the court in all 
these cases, either have in them the whole interest in the matter in litigation, or at least are 
competent to call upon the court for its decree. Mitf. Eq. PI. 56. 5 Chan. R. 40. 2 Vern. 
249. 3 Atk. 726.] JlWhere husband and wife were defendants to a bill praying an assignment 
of a term, which the wife by her answer claimed to hold to preserve her dower on the death 
of the husband, Lord Eldon inclined to think the suit might proceed without a supplemental 
bill. 1 Jac. \\. 495, Where a married woman by her next friend was plaintiff, and the next 
friend died, she was ordered to name a new one within two months, or the bill to be dismissed 
with costs out of the fund in court. Barlee v. Barlee, 1 Sim. & Stu. 100. The death of one 
defendant does not necessarily prevent judgment. Davies v. Davies, 9 Ves. 461. A suit by a 
corporation does not become defective by death of some of the members, aliter of a suit by 
the members in their individual character. Blackburn v. Jepson, sSwanst. 138.; see 1 Jac. 
R. 73. 1 Russell, 51 7.|| 

The first difference is in real actions; where there are several Cro.Eliz. 982. 
plaintiffs, and there is summons and severance, as there is in most ^ ' i*** ^^^' 
real actions, there the death of one of the parties abates the writ; 10 Cc 134. 
but in personal and mixed actions, (where one entire thing is to be Jon. 452. 6 Co. 
recovered,) there \he. death of the parties does not abate the writ; 26. 
and the reason of the difference is, that where there are two joint 
tenants, and the one goes on to recover his moiety, and the other 
will not proceed, there is no reason that he who is willing should 
not recover his right, since such tenant has a distinct moiety, and 
therefore should have an action to recover. But no summons or 
severance lies in personal actions, as, if trespass be committed on 
such joint tenants, they must both join in the action ; for as one 
may release the whole, so the other may refuse to go on, and his 
companion cannot recover his parf of the damage without him : 
so, in debt on an obligation to two there can be no summons and 
severance, because one of the joint obligees may release the bond : 
but, if a man appoints two his executors, there shall be summons 
and severance, because one of the executors may release ; yet 
such a release is a devastavit in him ; but, if he will not proceed at 
law, it is no devastavit ,• and therefore both executors l)eing only 
trustees for the person deceased, they shall not be compelled to go 
on together: but if one refuses, the other may bring his action in 
the name of both, and have summons and severance ; for other- 
wise 



ABATEMENT. 



Co. Lit. 159. 



Cro.EHz.652 
Leon. 44. 

Co. Lit. 139. 



Dyer. 279. 



10 Co. 134. 
Co. Lit. 139. 
(a) But shall 
abate in a set. 
/a, being an 
original writ. 
Brownl. 64. 
but not upon 
a urrit of en- ', 
quirt/. Leon. 
30 U. 6. 30. 



wise each executor might by collision with the debtor, and not 
proceeding, keep the other from recovering the assets, and yet 
not create a devastavit in himself. But after such summons and 
severance he does not proceed for the moieties as in real actions, 
but he proceeds as the sole representative of the testator, and is 
entitled to the whole the testator was in his lifetime. 

From these premises it follows, that if there be two joint- 
tenants or copartners, and they bring a real action, and one be 
summoned and severed, the other shall proceed for his moiety j 
and if the person severed die, the writ abates, because he goes for 
the whole, in case of the death of the joint-tenant, or of the co- 
partner without issue ; and it would be improper to do it on that 
writ, where by the summons and severance he went only for a 
moiety before; and the writ cannot have a double effect, for a 
moiety in case of summons and severance, and for the whole 
in case of survivorship ; and therefore since the nature of things 
is changed by the death of one of the parties, there must be an- 
other writ. And it is the same law, if such joint- tenants proceed 
without summons or severance ; for since both by the writ might 
by possibility recover their moieties, they shall not go on for the 
whole in case of survivorship ; because the words and effect of 
the writ at the time of its first purchasing were, that each might 
recover his moiety; and therefore a new writ must be purchased 
to enable one to proceed for the whole : but in personal and 
mixed actions, where there is summons and severance, and yet 
after such summons and severance the plaintiff goes on for the 
whole, tkeref if one of them die, the writ shall not abate, be- 
cause he goes on for the whole after summons and severance ; 
and if he were to have a new writ, it would only give the court 
authority to go on for the whole. 

Therefore, if there are two executors, and they bring an 
action of debt, and one of them is summoned and severed, or 
not, and such severed person dies, yet the writ shall not abate. 

So, if two joint-tenants bring a writ of ward, and they are 
summoned and severed, and the severed person dies, the writ 
shall not abate ; because after such severance he went on for the 
whole, and so he does after the death. 

So, in a gttare impedit by two joint- tenants, and one summoned 
and severed ; if the severed person die, the writ shall not abate j 
because the adowson is an entire thing, and the survivor pro- 
ceeded for the whole after the severance, and so he may after 
the death. 

In judicial writs, the suit shall not abate by death, if the 
person surviving be entitled to the whole (a) ; as if a fine be levied 
by two coparceners, and one of them die without issue, proceed- 
ings shall go on for the other, because he is entitled to the 
whole by survivorship ; but if the other coparcener have issue, 
then the writ shall abate, for the survivor is only entitled to a 
moiety ; for there is no summons and severance in judicial writs. 
26J. 

But if there be several persons named as plaintiffs in the writ, 

and 



(F) Of Abatement hy the Death of Parties. 11 

and one of them was dead at the time of purchasing the writ, isB. 4. i. 
this may be pleaded in abatement; because it falsifies the writ, „. ^%^^* . 
and because the right was in the survivors at the time of suing Qiif^'g Ent. 6. 
the writ, and the writ not accommodated, as the case then was. Rast.Ent.i26. 

But if an erroneous judgment be given against two, either 26 Ass. p. 25. 
of them may bring a writ of error, and he may summon and Bro. Summ. & 
sever the other; for it would be unreasonable that the one Sev. 19. 
should not discharge himself of an erroneous judgment, because 
the other will not intermeddle ; and default of one in a personal 
action shall not prejudice the other. 

If there be several defendants in the original action, and one Cro. Car. 426. 
die, the writ does not abate, because there being a joint de- •^°"' ^*J* ^*^*^' 
mand, it survives against the residue; but if one happen to 7-,' ,^, 
die pending the writ, there must be a suggestion on the roll, 1 Show. 1 86. 
because it would be error to give judgment against a dead 
person. 

In a writ of error, if there be several plaintiffs, and one die, Yelv. 208.212 

the writ shall abate; because the writ of error is to set persons 213. Ventr. 

in statu quo before the erroneous judgment was given ; and the ^f- contra 

plaintiffs in error are distinct sufferers in the judgment, since ro V^^^'p 

there might be different executions issued thereupon, and differ- noyerv. Brace 

ent liens made by such judgment on the lands of each of them ; Ld. Raym. 

and, by consequence, the survivor cannot prosecute the writ ^44. where 

of error for the whole, lest by collusive persuasion, or by neg- f doctrine 
T 1 11111 ■ r I t -i"^ ° advanced m 

ligence, he should hurt the representative or the deceased. the text is 

admitted by the court.] ||But the above cases (even the last) seem all to have been 
before the 8 & 9 W. 3. c. 11. (see jmst.)^ and by the effect of that statute the death of one 
plaintiff in error does not abate the writ. Clarke v. Rippon, I Barn, & A. 586.|| 

But if any of the defendants in error die, yet all things shall Sid. 419. 
proceed, because the benefit of such judgment is to go to the 044 iff s ik 
survivor, and he only is to defend it. siaill 

In audita querela by two, the death of one shall not abate the Theol. 139. 
writ; for the survivor is not to be restored to any thing that he sH. 7. 1. 
has lost, but only to discharge himself of the execution, and ^ ^°'^' ^^^* 
thereupon, notwithstanding the death of the other, he may pro- 
ceed for a discharge in toto for himself. 

[Upon the same principle it was holden, that a prohibition ^\'^^.'f°" 
by husband and wife to a suit in the spiritual court, did not Crofts *Andr 
abate by the death of the husband.] 57. Cas. temp. 

Hardw. 395. 

II Where husband and wife commjenced an action for money Checchi v. 
lent by the wife before marriage, and she died pending the "9^^'^» 
action, it was held, that it thereby abated. || 253^8 Dow* 

& Ry. 592. 

[The death of the lessor of the plaintiff in ejectment (though g Stra. 1056. 
only tenant for life) is no abatement. ||As to costs* 

in such case, see Tidd, 1243. (9th edit.)|| 

Kferi facias doth not abate by the death of the plaintiff after Clerk v. Wi- 
the seizure of the goods ; for by the seizure the property is ^J*^*"^' ^ ^'^• 
changed. But if the goods seized are not sufficient to satisfy j g-^^' 322.* 
the debt, a second feri facias cannot issue without a revivor s. C. 6 Mod. 

of 



18 ABATEMENT. 

S90.S.C. of the judgment, (a) An extent abates where the death hap- 
(«) Wharam pg^^ before the liberate ; for until tlvat is awarded, the execution 
ivli^'llo*""' 's incomplete. So, a seqtiestration to compel performance of a 

decree when the party dies before order for sale of the goods. 
6& 9W.5. A suit for partition of lands is not abated by the death of one 

C31. §3. of the tenants. Nor is a suit on the statute of hue and cry, 
«7Eliz.c.i3. commenced in the name of the clerk of the peace, abated by 
^ * his death or removal. 

1 Burr. 147. If the plaintiff or defendant die whilst the court are consider- 

219. 4 Burr, ing of their judgment, ||or after a special verdict or special case, 
2277. Bates v. j^^jj pending the time for argument, or for advising thereon, or 
iT^m°R!c57. *^" ^ motion in arrest of judgment, or for a new trial,]) they will 
||i Ken. 253. permit the judgment to be entered up as of the term in which it 
1 East, 409. regularly might have been : so, perhaps, if there be any frivolous 
T-^T"- '^^' ^^^y ^y ^^^ other party ; but, where the proceedings are in the 
(9th edit ) common course of law, they cannot interfere. 

1 Crompton & Jervis, 47.|| 

Sir Thomas An information does not abate by the death of the attorney- 
Waller V. general ; nor by the death of a relator who prosecutes for the 
Hanger, king: nor, it seems, by the death of the m^Tmev qui tarn {b), 

2 Bulstr. 26K g,p f^j, jjj gyplj ^jjgg jjjg attorney-general may proceed for the 

lin" Hardr. '^' king's moiety. 

161. (i) Hammon V. Griffith, Cro. Eliz. 583. Anon. Moor, 541. 
Mitf. Eq. PI. The proceedings upon an information in equity can only abate 
2 E Cas Abr' ^^ ^^^ death or determination of interest of the defendant. But, 
1. 1 Ves. 71. i^ there are several relators, the death of any of them, while there 
»Ve8.327. survives one, will not in any degree affect the suit: but, if all the 
relators die, or if there is but one, and that relator dies, the Court 
will not permit any further proceeding till an order has been ob- 
tained for liberty to insert the name of a new relator, and such 
name is inserted accordingly; otherwise there would be no per- 
son liable to pay the costs of the suit, in case the information 
should be deemed improper, or for any other reason should be 
dismissed. 
Eq. Cas. Abr. The benefit of a decree in equity may be had, notwithstanding 
2- P- ''• the death of some of the parties, provided that nothing be re- 

quirable of their representatives. 
1 Vern. 351. After a cause has been heard on a bill of interpleader, and a 

trial at law has been directed to settle the right between the 
defendants, the death of the plaintiff does not abate it, for his 
interest is at an end. 
Continued by By the 1 7 Car. 2. c. 8. it is enacted, " That in all actions 
30 Car. 2. c. 6. " personal, real, or mixed, the death of eitlier of the parties (c) 
and made per- «« between verdict and judgment shall not be alleged for error, so 
petualbyi Jac. « ^g g^^j^ judgment be (rf) entered within two terms after such 
t)*ife'ither'of " verdict." (e) 

the parties die at any time before the assizes, it is out of the statute ; but if after the assizes 
begin, though before trial, it is no error ; for the assizes are but one day in law. Salk. 8. 
pi. 21. [7TermR. 31. And in the former case, the court said it was in their discretion 
whether they would arrest the judgment. Salk. uln supra. But in Lord Raym. 1415. it was 
holden not assignable for error, it being stated on the record that the defisndant appeared per 

altornatum 



(F) Of Abatement by tJte Death of Parties. IS 

attornatum sumn^ {d) If after the verdict, and before the day in bank, the plaintiff dies, and 
the defendant signs judgment the second term after the verdict, this is within the statute, and 
the same as if he had actually entered judgment on the roll. Sid. 585. [Judgment entered 
according to this statute, after the plaintiff's death, shall relate in all respects to his life. 1 Lev. 
278. Raym. 210. Where the jury found a special verdict, and the plaintiff died in the term 
in which it was to be argued, the judgment was by consent entered up as of the first day of 
that term. Pond v. King, 1 Wils. 124. Where the plaintiff dies between the verdict and the 
entry of the judgment, his representative cannot take out execution without a scire facias. 
Earl V. Brown, 1 Wils. 502.] \{e) The statute does not apply to cases of nonsuit, Dowbiggin 
v. Harrison, 10 Barn. & C. 480 ; nor to cases where the party dies between interlocutory 
judgment, and before the return of the enquiry ; it is confined to verdicts. 4 Taunt. 884.|| 

[An information for a penalty under the French act was ad- Attorney Ge- 
judged not to be within this statute, but to abate by the death of n^ral v. Buck- 
the defendant between the verdict and the judgment ; for, in the 264. * 

first place, it is not an action real, personal, or mixed ; secondly, 
the king cannot be properly said to be a party ; thirdly, it is not ' 
a duty, or in lieu of customs, or any revenue of the crown ; and 
lastly, actions do not comprehend informations between party and 
party, or include the king. A suggestion of the death upon the 
roll confessed by the attorney-general was thought sufficient 
without a writ of error. 

The rule laid down by the Lord Chief Baron Gilbert in the 
preceding part of this chapter respecting the non-abatement of a 
suit by the death of any of the plaintiffs or defendants, when 
such death made no alteration in the proceedings, though 
founded in reason, was not uniformly supported by authorities ; 
it is therefore enacted by the 8 & 9 W. 3. c. 11. § 7. * That 
' if there be two or more plaintiffs or defendants, and one or 

* more of them die, if the cause of action survive to the surviving 

* plaintiff or plaintiffs, or against the surviving defendant or ' 

* defendants, the writ or action shall not be thereby abated ; but 
' such death being suggested on the record, the action shall pro- 

* ceed at the suit of such surviving plaintiff or plaintiffs against ^. 

* such surviving defendant or defendants.' 

The formal suggestion of the death need be only on the plea- Farr v. Denn 
roll; nothing more is necessary on the nisi-prius-roll than i Burr. 562. 
merely to point out to the judge what he is to try, and between 
whom. 

Although the statute makes mention only of actions at law. Brown v. 
yet it hath been construed to prevent the abatement of a suit in Higden, 
equity, provided that the subject-matter of the suit be not affected ^ ^^^' ^^^' 
by it.] 

* By the last-mentioned statute, § 6. it is enacted. That if any [Where a de- 

* plaintiff happen to die after an interlocutory judgment, and fendant died 

* before a final judgment obtained therein, the said action shall "^'O^^ the ex- 

* not abate by reason thereof, if such action might originally be ti'iife'to"plead^ 

* prosecuted or maintained by the executors or administrators of underajudge's 

* such plaintiff; and if the defendant die after such interlocutory o'der, it was 

* judgment and before final judgment therein obtained, the said !u°'''T' ''^i^ 

* action shall not abate, if such action might originally be pro- could not* 

* secuted or maintained against the executors or administrators under this' act, 

* of such defendant (a), and the plaintiff, or if he be dead after *'g" judgment, 

* such interlocutory judgment, his executors or administrators, ^".'^^'^"'^ P"' '^ 

* shall 



14 



ABATEMENT: 



thereon. 
1 WiIs.5I5. 
Wollop V. 
Irwin.l 
|K«) See 
4 Taunt. 884.11 



Berger v. 
Green, 
1 Made & S. 
929. ; and see 
3 Maule & 



S.281. 2Chitt. R,235. 

Turner v. 
Cowper, 
Barnes, 210. 



* shall and may have a scire facias against the defendant, if living 

* after such interlocutory judgment; or if he died after, then 

* against his executors or administrators, to shew cause why 

* damages in such action shall not be assessed and recovered by 

* him or them ; and if such defendant, his executors or admini- 

* strators, shall appear at the return of such writ and not shew 

* or allege any matter sufficient to arrest the final judgment ; or 
' being returned warned, or upon two writs of scire facias it be 

* returned, that the defendant, his executors or administrators, 

* had nothing whereby to be summoned, or could not be found 

* in the county, shall make default, that thereupon a writ of 

* enquiry of damage shall be awarded, which being executed and 

* returned, judgment final shall be given for the said plaintiff, 

* his executors or administrators, prosecuting such writ or writs 

* of scire facias, against such defendant, his executors or admi- 

* nistrators respectively.* 

II Where interlocutory judgment was signed, and the plaintiff 
died on a subsequent day in term, the court granted a rule to 
compute principal or interest on the bill of exchange on which 
the action was brought. || 



6 G. 4. c. 

$67. 



16. 



7G.4. 
$26. 



C. 57. 



[Where plaintiff died after a rule by consent to refer to the 
prothonotary, and before the report, the court allowed his 
executor to be made a party to the rule, and directed the pro- 
thonotary to proceed without the defendant's consent.] 

II By 6 Geo. 4. c. 16. § 67. whenever an assignee of a bank- 
rupt shall die, or a new assignee or assignees shall be chosen, no 
action at law or suit in equity shall be abated, but the court in 
which any action or suit is depending may, upon suggestion of 
such death or removal and new choice, allow the name of the 
surviving or new assignee or assignees to be substituted in place 
of the former, and such action or suit shall be prosecuted in the 
name of or names of such surviving or new assignee or assignees 
in the same manner as if he or they had originally commenced 
the same. 

A similar provision is contained in the last insolvent debtors' 
act in case of the death or removal of assignees of insolvent 
debtors. U 



Doct. PI. 3. 

Sid. 410. 
Leon. 108. 
169. Ttde 
tit. Baron and 
Feme. In 
an action 
against baron 
and feme, the 
buron died 



(G) By Reason of Coverture. 
^OVERTURE is a good plea in abatement, which may be 



either before the writ sued, or pending the writ. By the 
first the writ is abated de facto, but the second only proves the 
writ abateable ; both are to be pleaded, with this difference, that 
coverture pending the writ must be pleaded jpost ultimam continu' 
ationem : whereas coverture before the writ brought may be 
pleaded at any time (a), because the writ is de facto abated; but 
if a feme sole takes out a writ, and after marries, the defendant 

WW 



(G) By Reason of Coverture, 15 

was legally attached on such suit ; and therefore may plead in and the feme 

chief to it any defence he has. ^nS/^r 

cito ; and the court inclined to think the writ abated, because her name was changed. Stile, 
138. [But 2 Ld. Raym. 1525. 2 Stra. 811. Barnard. K. B. 70. are all express that coverture 
in the defendant after action brought cannot abate plaintiff 's writ. See too, to the same effect, 
2 RoUe's R. 53.] (a) Vide infra. 

If a writ be brought by A. and B. as baron and feme, whereas F'^z. Brief, 
they were not married until the suit depended, the defendant may 
plead this in abatement ; for though they cannot have a writ in 
any other form, yet the writ shall abate, because it was false when 
sued out. 

If a writ be brought against a feme covert as sole, she may Latch, 24. 
plead her coverture; but if she neglect to do it, and there be a Stile, 254. 
recovery against her as a feme sole, the husband may avoid it -^ ^^ rrpj^^* 
by writ of error, and may come in at any time and plead it. piea of co- 

verture, whether in plaintiff or defendant, can only be in abatement. MUner v. Milnes 
sTermR. 627. See tit. Baron and Feme. ||This is too generally stated. Coverture at the 
time when the supposed contract was made, or cause of action arose, may be pleaded in bar 
or given in evidence on non-assumpsit, for it shews an incapacity to contract, Sec.; but if the 
feme was unmarried when the cause of action arose, then the plea must be in abatement ; for 
it does not destroy the contract, &c. but only shows that the husband is a necessary party to 
the action. 8 Terra R. 545. 3 Camp. 123. 3 Term R. 627. 6 Term R. 265.11 

If an action be brought in an inferior court against a feme sole, Salk. 8. pi. 20. 
and pending the suit she intermarry, and afterwards remove the ^ ^Revnold" 
cause by habeas corpuSy and the plaintiff declare against her as a Qjib. Hist. * 
feme sole, she may plead coverture at the time of suing the C. P. 245. 
habeas corpus (b), because the proceedings here are de novo, and W [But the 
the court takes no notice of what was precedent to the habeas ^^^ ?j this^"*' 
corpus; but upon motion on the return of the habeas corpus, the case hath been 
court will grant a procedendo ; for though this be a writ of disallowed, 
right, yet where it is to abate a rightful suit, the court may Haddock v. 
refuse it; and the plaintiff had bail below to this suit, which by g^^es 5551 
this contrivance he is ousted of, and, possibly, by the same 
means, of the debt. 

If a feme sole plaintiff, after the verdict, and before the day in Cro. Car. 155. 
bank, takes husband, she shall have judgment, and the defendant ^ Bulst. 5. 
cannot plead this coverture, for he has no day to plead it in. 

II If she take husband after suing out the writ, and before Morgan v. 
declaration, the defendant cannot give the coverture in evidence 5*^"*^^% 
under the general issue, but must plead it in abatement ; and so Milnm- v. 
also if a married woman sues alone for an injury to her property Milnes, Term 
whilst single. II R.327. 

[In equity, a suit does not abate by the marriage of a female 1 Ves. 182. 
defendant, but the plaintiff may proceed, only entering the name 
of the husband and wife in the subsequent proceedings. 
^ Though a suit in equity regularly become abated by the mar- Lady Cram- 
riage of a female plaintiff, yet if she afterwards proceed in the suit ^^^^ ^- ^^ 
as a feme sole, the mere want of a bill of revivor is not error r*2m'. 
upon which a decree can be reversed upon a bill of review by the (c) Godkin v. 
defendant, (c) And if the husband die before revivor, she may l^arl Ferrers, 
proceed without it, for then her incapacity to prosecute the suit ^^^2' c'tedin 

is 



16 



ABATEMENT. 



Mitf. Eq. PL 

67. 

flSee 7 Ves. 
257. loVcs.si 
13 Ves. I6l.il 



is removed ; but the subsequent proceedings are m the name and 
description she has acquired by the marriage.] 

II As to proceedings by scire facias on marriage after judg- 
ment, see tit. « Scire Facias," (C). Vol. VII. and Tidd's Prac. 
1114. {9th ed.)|| 



(H) By a Defect in the Writ 

nPHE foregoing objections, such as want of jurisdiction, disa- 
bility in the plaintiff, or privilege in the defendant, 8fc. being 
matters dehors^ must be shewn to the court, and must be pleaded 
in proper time and manner ; but, for defects in the writ itself, the 
court may ex officio abate it. 

And herein we must observe, that the law hath been very strict 
in obliging men to keep to the legal forms it prescribes ; and 
therefore in the writ, which is the foundation of the whole pro- 
ceeding, requires such certainty and exactness, as that no person 
be arrested or attached by his goods, unless there appear suf- 
Cro. Jac. 576, ficient grounds to warrant such proceedings ; so that if the writ 
577. vary materially from that in the register, or be defective in sub- 

stance, the party may take advantage of it. 
Hob. 84. But though the writ vary from the register, yet, if it be war- 

ranted by the modem precedents, this shall not abate it. 



9H.7. 16. 

10 E. 3. 1. 
pi. 2. 2 Inst 
662. Hob. 1. 
51, 52. 84. 
Carth. 172 



(I) By the Writ's not agreeing with the Count. 



Cro.Eliz. 729. 
Cro. Jac, 651. 
Jon. .■504. 
[(o) The de- 
fendant can- 
not plead a 
variance be- 
tween the writ 
and count, 



T F the count or declaration varies in form, the defendant may 
plead it in abatement (a), for the plaintiff has abated his own 
writ by prosecuting it in a different manner ; but, if it varies in 
substance, the defendant may move it in arrest of judgment, be- 
cause the Court has no authority to proceed, a different matter 
being prosecuted from that which the writ has given authority to 
the Court to take cognisance of. 

without praying oyer of the writ, and shewing it to the court, 2 Wils. 85. 393.] {[And as the 

court will not now grant oyer of the writ, such pleas have falleu into disuse; see Tidd. 636. 

(9th edit.) 1 Bos. & Pull. 645. 7East,S83.|| 

(5) Fitz. Brief, The declaration varying from the writ (c), as by laying the 
cause of action in the reign of a present king, where the writ 
supposed it to have been in the reign of a former king ; or by 
giving the defendant a name different from that in the writ {d) ; 
as, where the writ calls him A. B, of London, alderman, and the 
plaintiff declares against him, as A, B. of LoTidon, Esq. ; or, 
where the declaration is otherwise defective in not pursuing the 
writ, or not setting forth the cause of action with that certainty the 
law requires, or in laying the offence in a different county from 
that in which the writ was brought {d) : in all such cases the 
defendant may plead in abatement. 

But the writ may in some cases be general, and the declaration 
special ; as, where a statute gives an action, but does not prescribe 

any 



219.321. 



(c) Yelv. 120. 
Finch's Law, 
357. Latch, 
175. 

(rf) Allen, 17, 
18. 



Doct. PI. 84. 
etplut under 



(K) TVhere the Writ is abated de facto, <Spc. 17 

any form of the writ, the writ framed by the common law will the division of 

serve, and the special matter may be set forth in the declaration. *^f dedara- 

' * •' twn s agreeivg 

wilh the writ, tit. Pleader. 

If a feme sole be disseised, and afterwards marry, and she and 14 H. 6. I4. 
her husband bring an assize ; the disseisin must be alleged to be 2 And. 97. 
done to the wife : but, if a feme disseisoress marry, in an assize 
against them, the disseisin shall be alleged to be done by them 
both, because there is no other form of writ. 

(K) Where the Writ is abated defacto, or is only 
abateable. 

XJERE the general rule to be observed is, that where the writ 2 H. 6. 4. 

is de facto a nullity and destroyed, so that judgment there- ,^°'^'*^'-^' 
upon would be erroneous, there the writ is de facto abated j as, if " "'\.^ ^q^ •■ 
an action be brought against a feme covert as sole, this makes 
another man's property liable without giving him an opportunity 
of defending himself; which would be contrary to common jus- 
tice, and therefore the writ is de facto abated, la) 

So, if the return of a.plunes mandxnmis be laid to be after the Carth. 172. 
beginning of a term, and the memorandum of the bill be entered ^"^ ^" *'"^ 
generally of that term, this makes the writ a perfect nullity ; for ^'^^^ leave'to 
by the plaintifPs own shewing he had no cause of action at the amend. 2 Lev. 
time when the action was brought. 197. 

[So, if the matter in question appear to be exclusively of eccle- Br. Office, &c. 
siastical cognizance ih) ; or, if an appeal of death be brought by a V-}^- 22 E. 4. 
woman of the death of anyone else than her husband (c) ; or the TAVjorj 4 ^ 
debt be laid to be under forty shillings. (c) 3 Burr. 

1592. 4 Term R. 495. 

So, in equity, if a bill of appeal and review be brought of a Jennet v. 
decree in the court of a county palatine. 1 V •'^''i84 

And as in these cases a fatal objection to the proceeding ap- Hob. 280. 
pears upon the very face of the record, the court may and ought ' ^'** ^^r 
ex officio to abate the suit at any time, and in any stage of it. 
For the court, who are to judge according to law, are not con- 
cluded by the admission of the parties of any thing that judicially 
appears to be contrary to law. 

Regard to public decorum and their own dignity sometimes Dacosta v. 

calls upon the court to interfere in this manner ; as, where the Jones, Cowp, 

question proposed on the record is idle in itself, involves no civil t ^' ^^'^^' 
*. , , .'. * 1 ,1 . , . . ,. ' . . , Leesom, 2 H. 

right or mjury, and would introduce m its discussion indecent or Black. R. 43, 

improper evidence. 

The courts, having a general and necessary control for the Steane v. 

purposes of justice over all causes depending before them, will )^pl'"^J'p 

occasionally interpose on the motion of a defendant, and stay the 754^Kenn'ard 

proceedings. Thus, though upon the face of the record the de- v. Jones, 

mand exceed the sum of forty shillings, yet, if upon affidavits on 4 Term R, 

the part of the defendant, uncontradicted by the plaintiff, it be ^^5. Welling- 

shewn that in fact it do not amount to that sum, the cause will ^°Xerra R 6« 

Vol. I. C not 



18 ABATEMENT. 

not be permitted to proceed any farther in the superior court. 

(a) Petrie v. (a) So, if in an action for bribery on the statute of 2 G. 2. c. 24-. 

White, it appear that the plaintiff was guilty of lailful delay in the pro- 

a Term R. 5. gecution of his suit, which fact the defendant could not intro- 
duce either on the lecord, or at the trial, the court will stay the 
proceedings; for "iVil/itl delay is expressly prohibited by the 
statute. 

Pcshall V. So, where they find that actions have been brought against 

M^*°"'r^ several upon a penal statute which makes only one offence; they 

zrerniR. 712. -ii ^ '.i ' i- * f u n 

will stay the proceed mgs upon payment or one penalty.] 

(A) Salk. 2. Where the writ is only abateable, it must be abated by plead- 

2l 1 R^° ing in time; for matters in (&) and before the writ (c), cannot 
853. Show.' ^^ taken advantage of in error. 

169. Roll. Abr. 783. That a man shall not assign that for error which he might have 
pleaded in abatement. Carth. 124. There is a difference between original and judicial 
writs ; for in the former, matter of form abates them as well as substance ; aliler in the latter; 
for if the substance be good, the want of form will be aided. 41 E. 3. 13, 14. (c) Other- 
wise, of faults in the proceedings after the writ. Bro. Faux Latin, 9. 48. For this, mde tit. 
£rror, 

Carth. 124. Therefore, if a feme covert bring an action in her own name 

3 Term li 627 ^^^ attornatum, and the defendant plead in bar to the action, he 
Cro. EL 554. shall never afterwards assign the coverture for error. 
Salk. 4. pi. 10. So, though it be a good plea for a defendant to say that a 
stranger is tenant in common with the plaintiff, yet if he does 
not plead it in abatement^ he shall not have advantage of it in 
arrest of judgment. 
arth.261. So, if an action be brought against one executor, where there 

are more, if that one executor do not plead this in abatement, 
but plead to the action, he shall never have advantage of this plea 
afterwards. 
jICroEHz.554. So, where trespass is brought by one joint-tenant, or by one 
Moor, 466. II tenant in common, and the defendant pleads to the action, and 
the jury find specially, that another (not named) is joint-tenant or 
tenant in common with the plaintiff; yet he shall have judgment, 
notwithstanding the writ at first was abateable. 
Saund.291.'' So, where an action of debt is brought on a joint bond against 

one of the obligors, and upon ncni est factum pleaded, the jury 
find that J. S. (then living) was jointly bound with the defend- 
ant, yet the plaintiff shall have judgment. 
Trin. 24 Car. Tenant in common of lands brought an action of trover in 
2. Rot. 1216. his own name alone for cutting down trees and carrying them 
tween Black- ^^''^y ' ^^^ defendant pleaded to issue ; and in a special verdict it 
burn V. Grove, ^^s found, that the plaintiff was tenant in common with J. S. not 
cited in Carth. named; yet the plaintiff had judgment, because this was a mat- 
^"'* ter pleadable in abatement. 

Ree« V. Abbot, [If one only be sued on a joint note, it must be pleaded in 
AhjT'* ^^^* abatement ; it will not be error. So, in actions against partners. 
Smith 2 Black ^^^ where an action is brought by a joint covenantee (rf), ad- 
R. 947. vantage may be taken of it by demurring generally. 

Rice V. Shute, 5 Burr. 2611. l Black. R. 695. S. C. (rf) Cabel v. Vaughan, 1 Saund. 291. 
1 Sid. 420. S.C. 1 Ventr. 34. S. C. B.N.-P. 158. 5 Co. 119. ||That is if it appears on the 
record that there is another covenantee living and not joined, or if it be made to appear by 

praying 



(K) Where tfie Writ is abated de facto, (§'C. 19 

praying ot/cr of the deed and setting it forth, 1 Will, Saund. 154, a. notd, and cases therein ; 
and in such case the nonjoinder is also a ground of nonsuit or of error. Ibid.W 

In such a plea to^n action on a bond, it must be stated that Sayer v. Chay- 

the other obligor executed the deed, and that he is still alive. iTr^is-'^'d 

It is not sufficient to say, that another, not named, was jointly 291.* iiorner 

bound. But, if it appear on the face of the declaration that both v. Moor, 

obligors have sealed, and both are living, the objection is good M. 2 G. 2. 

in arrest of judgment. fjfj'' ^.P""?' 

•^ o 2614.; Ijand 

see 1 Will. Saund. 91 in notes.|| 
But in trespass it is no plea in abatement that there is an- , , „ ., ^ 
other joint-trespasser not named, (a) J 11(a) So, in an> 

case of tort; Govett v. Radnidge, 5 East, 62. 1 Will. Saund. 291. e.; for torts are several in 
their nature, and the plaintiff may elect to sue all or any of the parties. But if the action is 
founded on matter ex qnasi contractu, though its J'orin be in tort the defendant may plead in 
abatement that other parties ought to be joined. Buddie v. Wilson, 6 Term 11.369. Powell 
V. Layton, 2 New R. 565. Weall v. King, 12 East, 452.; and see Green v. Greenbank, 
2 Marsh. 485. Bretherton v. Wood, 5 Brod. & B. 54. ; and there is a distinction between 
2}ersonal actions of ton and such actions when they concern real property. Therefore, if one 
tenant in common be sued in tort for any thing connected with the land held in common, 
he may plead the tenancy in common in abatement ; see 1 W. Saund. 291 f. notdf and cases 
there-ll 

II If one of several part owners of a chattel sue alone for a Addison v. 
tort, advantage can be taken of the objection only by plea in Hy^^*"^"^' 
abatement, even though the defect appear in the declaration, gedfreworth 
And if a defendant neglect to take advantage of it in that man- v. Overend, 
ner, in such an action by one part-owner, he cannot afterwards 1 Will. Saund. 
avail himself of it by a plea in abatement to another action by an- p^ g?^' '^n.s^^ 
other part-owner, {b) \\ Although in 

actions of tort the nonjoinder of a co-plaintiff is matter in abatement only, yet according to 
the doctrine in the note above it would seem, that where the action is substantially founded on 
contract, the form of it in tort will not prevent the plaintiff being nonsuited for nonjoinder of 
other plaintifis. 

If a qiiare impedit be brought against the bishop and incum- Cro. Jac. 651. 
bent only, without naming the patron, though this might have ""'st. 4, 5. 
been pleaded in abatement, yet if the defendant plead in bar, ^c. PajJ^ ^"oe" ' 
it cannot after, upon a writ of error, be assigned for error; for 311. 2 Roll, 
though the want of a patron's being made a defendant might Rep. 239. 
make the writ abateable, yet it was not thereby actually abated ; ^y* '^^* 
and nothing shall be assigned for error concerning the writ, but 
what actually abates it. 

If an action be brought against Sir Francis Fortesque, militem Roll. Abr. 781. 
ct baronettum, and he appear and plead to issue, and a verdict '^|j ^^• 
and judgment be given for the plaintiff, the defendant in a writ R"^'-Rep.45o. 
of error shall not assign for error that he was a hnigJit of the 
hath, and ought to be so named ; for he has lost this advan- 
tage by appearing to the other name, and thereby concluded 
himself. 

If a writ be brought to the damage of 40/. and the plaintiff Palm.270,271. 
declare ad damnum 200/. and the verdict give 30/. this is no ^^^ as to this 
error after verdict, for the writ is not abated dc facto, but only [g^^t^af IfXf 
abateable by plea. declaration 

varies in form, the defendant must plead it in abatement; but, if it varies in substance, the 
defendant may move it in arrest of judgment, or take advantage of it in error ; because the 

C 2 Court 



20 ABATEMENT. 

Court has no authority to proceed, having prosecuted a different matter from that which the 
writ has given it iiithority to take cognizance of. Jones, 304. Cro. Eliz. 722. Cro. Jac. 654. 
For this rule tit. Error. 

Anon s Atk. ^A bill in equity is not dismissed for want of parties ; but 
15. Gwinnv.* stands over for amendment on paying the costs of the day, 
Poole, 4 Bro. The want of parties may be pleaded in abatement ; but, upon 
P.(;. 122. allowing the plea, the court will give the plaintiff leave to 
Pratt, I P. amend.] 
Wms, 593. Mitf. Eq. Pi. 221. 

(L) Where the Writ shall abate in toto, or in Part. ] 

Hof 199*217 "W'HATEVER proves the writ false at the time of suing it 
245. Biiist. i! ou^ shall abate the writ entirely (a); as, if it appears by 

(a) Cut tliis the plaintiff's own shewing that he had no cause of action for 
falsification of part; therefore if an action of trespass be brought against two 
be^in a mate- defendants, and the one plead that the other was dead die im- 
rial point ; for pctrationis brevis, or that there is none such in renim naturoy 
in a prcecipe the whole wi'it shall abate; for it is the plaintiff's fault to use 
^itod reddat jj^g authority of the court to call in a man that was dead ; and 
on^ pleadT** ' ^' ^^s no less an abuse of the process to issue it against a feigned 
non-tenure, person. 

and the other takes the whole tenancy on himself, the writ shall not abate in the whole, but 
stand good against him that hath accepted the tenancy, because there is a proper defendant 
to the action ; and the non-tenure of the one does in no ways prejudice the other defendant. 
Rast. Entr. 3G5. Doctr. Pi. 7. 

Doctr. PI. 7. But, if one of the defendants die pending the writ, this shall 

not abate the action against the other defendant ; for this is the 
act of God, and no default in the plaintiff. See the 8 & 9 W. 3. 
c. 11. $ •7.suprh(P). 
Hewitt V. Bib- [The bankruptcy of the plaintiff or defendant happening in 
bms, 2 Wils. any stage of a suit either at law or in equity is no abatement, 
krctchman v ^^^ ^^ '^^^ discharge of the plaintiff after action brought under 
Beyer, 1 Term ^" insolvent act, and an assignment of liis property for tlie be- 
R.463. nefit of his creditors.] 

Waugh V. 

Austen, 5 Term R. 437. Anon. 1 Atk. 263. Butler v. Davidson, Exchequer, East. 33 G.5. 
But contr. per Lord Thurlow, where it happens before decree or judgment. Sellas v. Daw- 
son, in Chancery, Dec. 8th, 1790. Co. Bpt. Laws, 622. 3d edit. Hedley v. Brown, Barnes, 
389. llThe case of Sellas v. Dawson, was conudered and overruled by the Court of Exche- 
quer in Butler v. Davidson. But in a later case, where after a decree in a cause, referring it 
to a master to take the accounts, the plaintiffj before the accounts were taken, took the 
benefit of an insolvent act, and assignees were appointed, who conceiving the suit did not 
abate, took out warrants to proceed in the accounts before the master ; Lord Loughborough, 
upon a motion to stay proceedings till a supplemental bill should be filed, held, that there is 
no other way for the assignees to come into that court but by filing a bill : that though at 
law as-signees have been allowed to proceed in the bankrupt's name, giving security for the 
costs, yet at law the defendant can lose nothing by the bankruptcy of the plaintiff but his 
costs ; and security for the costs, therefore, is all that is necessarj' : that in equity more is 
necessary ; a plaintiff may be decreed to account and to pay the balance, and there must 
therefore be a substantive plaintiff, a party to the cause, who may abide such decree as may 
be made. Williams v. Kinder, 4 Ves. 387. ; and see Ry lands v. Latouche, 2 Bligh, P. C. 566. 
And though bankruptcy of the plaintifF does not abate a suit in equity, yet a motion will be 
' r.'itcd that plaintiff procure his assignees to file a sunnlcmcntal bill witliin a given tune, or 
' ai tt,e suit be dismissed without costs. Wheeler v. Malins, 4 Madd. 171. Porter v. Cox, 
5 Madd. 80. Randall v. Mumford, 18 Ves. 424. As to abateaient by death or removal of 
a«*igQec*, see ttnil (F^jj 

If 



(L) Where ths Writ shall abate in toto, <§pc. ti 

If there be two execQtors, and one who is named of D. say (^q l;^ 285. 

he is of C. the writ shall abate against both, because they are a. Doct. 

both representatives of one person, and must both be legally Pl'7. 21 H.e. 

summoned ; and as they are both but one person in the eye of ^."^ ^\\ e 

the law, the plaintiff cannot proceed against the one without oj^g plaintiff 

the other (a) ; but, in this case, the other defendant will be shall stop the 

obliged to plead, though the defendant's plea in abatement shall others from 

be first determined : and if it be found for him, shall abate the Foceeding : 
. , ' ' for the writ, 

writ in toto. ^ ^hen abated 

for want of form, is abated quoad all, though they have pleaded to issue. 8 Co. 159. 
Carth. 96. But, if two executors sue, and set forth themselves tq be executors, and that they 
proved the will, but upon the probate set forth, it appears that one only proved the will, 
and the defendant pleads this in abatement, a respondeas ouster will be awarded; for both have 
a right; and he that did not prove may come in when he pleases. Salk. 5. pi. 6. The setting 
forth tliat they had proved the will amounted only to surplusage ; the method is, to declare 
as executors generally, and make a profert of the letters testamentary, whereby it appears 
they are executors. 

At common law, non-tenure of parcel of the lands abated Booth, 29. 
the whole writ; for this falsified the writ which alleged the ^° ,-"4^' 
defendant to be tenant of the whole. But it was thought very ^q 'pj-om 
hard that a writ which was good in part, should be totally this statute 
destroyed by this plea; and therefore 25 E. 3. c. 16. enacts, that arose the dis- 

the writ shall only abate for that part of which non-tenure is taction in our 

1,1 •' ^ books, that 

alleged. the plaintiff 

cannot destroy, but may abridge, his demand. 

At common law, if the tenant plead non-tenure and disclaime?; Co. Lit. 362,3. 

the plaintiff cannot aver his writ, and say he was tenant ; for in q^I\^^^o^(j 

real actions anciently there were no damages given ; and the 5 Lgy -^q^ 

plaintiff by this plea has the effect of his writ, which is to be put Lutw. 963. 
into possession of the lands. But if non-tenure be pleaded, with- 
out disclaimer, the plaintiff may aver his writ, and shew that the 
tenant has the reversion in fee in him as well as the freehold, or 
take judgment at his election. 

If the demandant enters into any of the lands, pending the 4 E. 4. 52. 

writ, this shall abate the writ in toto. Doct. PI. 5. 

The plaintiff declared for arrears of a rent-charge, and de- gaunj, 332. 

manded a larger sum than was due to him, upon his own shew- Duppa and 

ing, by 7/. lOs. The defendant pleaded a bad plea, and the Mayo, 

plaintiff had judgment for his whole demand ; but perceiving jK^^ f'he dif- 

his mistake on the entry of the judgment, he released the 7/. IO5. ^^ ^^ that™^ 

and it was holden a good release {b) ; and that it was not a falsi- where the 

fication of his writ, but rather an affirmance ; but, if the defend- duty to be 

ant had taken advantage of it in due time, it would have abated '"^'^pxered is 
.1 -, / V o certain and 

the writ, (c) entire, ou the 

face of the contract or specialty,- a demand of more than is due is bad, and cannot be aided 
by the entry of a remittitur ; but where the duty is composed of several joarc^/s a demand of 
more than is due may be aided by remitting the overplus. Cro. Jac. 499. Lord Raym. 815. 
7 Mod. 88. ; and see Barnard v. Duthy, 5 Taunt. 27. Fortv v. Imber, 6 East, 454. (c) It seems 
it would only have abated the writ as to the 7/. 10«. and not in toto, according to Godfrey's 
Ca. 11 Rep. 45. b. See 1 Will. Saund. 285. a. b. notes, (5th ed.); and that the defendant in 
replevin may recover so much rent as he proves due, although he has avowed for more, see 
tit. Replevin (K), Vol. VILH 

If an action is well begun, and part of the action determines Co. Lit. 285. 
by act in law, and yet the like action is given for the residue, ^' 

C 3 the 



22 



ABATEMENT. 



Co. Lit. 285. 
a. 



Co. Lit. 285. 
[(a) So if 



Co. Lit 285. 



Co. Lit 
a. 



285. 



the writ shall not abate, but the plaintiff may proceed for tlie 
residue; but, where, by the determination of part, the like action 
does not remain for the residue, tliere the action, though well 
commenced, shall abate. 

As, if an action of waste be brought against tenant pa- outer 
vie, and, pending the writ, cestinj que vie die, this shall not abate 
the writ //* toto ; but the plaintiff may proceed to recover da- 
mages on this writ ; for the lessor might have an action for the 
damages, though cestuy que vie had died before any action of 
waste brought. 

So, if an ejectment be brought, and the term expire pending 
the writ, yet the action shall proceed for damages only, (a) 
the lessor of the plaintiff die. 2 Stra. 1056.] 
Co. Lit. 285. But, if tenant per outer vie had brought an assize, and pend- 
*• ing the writ, cestuy que vie had died, although the action was well 

commenced, yet the writ should abate ; because no assize lies for 
damages only. 

So, if an action of waste were brought by baron and feme in 
remainder in especial tail, and pending the writ the wife die 
without issue, the writ would abate, because all actions of waste 
must be ad exhoerediiationem. 

So, if a writ of annuity be brought, and pending the writ the 
annuity determine, the writ faileth for ever ; because the like 
action cannot be maintained for the arrearages only. 

When a vfxit is brought for two things, and it appears the 
plaintiff cannot have any other action for the one of them, the 
writ shall stand for the part that is good ; but where it appears 
he can have another writ in another form for one, there the 
whole writ shall abate ; because, where there can be no better 
..„. „ writ brought for the parcel, it ought to continue ; but, if another 

den V. Palmer ^*^'' ^^''^ ^^ brought for that parcel, it is bad, and ought to abate 
Hob. 88. ' in toto. {b) 

Rogers v. Cooke, Carth. 235. 1 Salk. 10. S. C. l Show. SG6. S. C. Hookin v. Quilter, 
2Stra.l271. iWils. 171.S.C. Curtis v. Davis, 2 Lev. 1 1 0. Betts v. Mitchell, 10 Mod. 315, 
Tate V. Whiting, n Mod. 196. Petrie v. Hannay, 3 Term R. 659. Jennings v. Newman, 
4 Term R. 347. i Will. Saund. 285. a. notis.\\ 

(M) Where it shall abate by reason of another Action 
brought for the same Thing. 

T^HE law abhors multiplicity of actions ; and therefore when- 
ever it appears on record, that the plaintiff has sued out two 
writs against the same defendant for the same thing, the second 
writ shall abate ; for if it were allowed that a man should be 
twice arrested, or twice attached by his goods for the same thing, 

of anpcal may j^y ^q same reason he might suffer in infinitum ; and it is not 
e p ea e m necessary that both should be pending at the time of the defend- 
ant's pleading in abatement ; for if there was a writ in being at 
the time of suing out the second, it is plain the second was vex- 
atious and ill ab initio. 

275. Where 

a prior suit depending, maybe pleaded to an information. 2 Hawk. P. C. 275. But it is 
no good plea in abatement of an indictment, as it is of an appeal or an information, that 

there 



11 Co. 45. 
Godfrey's 
case. 

Saund. 285. 
Cas. Temp. 
Hardw. 273. 
S. P. 



9 H. 6. 12. 
Mo. 418. 539. 
5 Co. 61. 
Doctr. PI. 10, 
67. Where 
a prior writ 



abatement 
to a seconti 
appeal. 
2 Hawk. P. C 



(M) Pendency of atioiher Action, ^ 

there is another indictment against the defendant for the same offence; but in such a 
case the court, in discretion, will quash the first indictment. 2 Hawk. P. C. 367. [Fost. 
Cr. Law. 104. Dougl. 227. Qu. Whether it be so in any informations but informations qui 
tarn?] 

But then it must appear plainly to be for the same thing: for 4 H. 6. 24. 
an assize of lands in one county shall not abate an assize in an- Doctr. Pi. lo. 
other county, for these cannot be the same lands. 

llThe two suits must be between the same parties. A suit by Reeve v. 
husband and wife against the wife's trustees cannot be pleaded in £^^^y» ^ ^™* 
bar to a subsequent suit by her and her next friend, against her tu.464. 
trustees and her husband, although the relief prayed is the 
same. || 

In general writs, as trespass, assize, covenant, where the special 5 q^^ gj^ 
matter is not alleged, and the plaintiff is nonsuited before he Doctr. Pl.ii, 
counts; though the second writ be sued pending the other, yet 12. Theol. 1. 
the former shall not be pleaded in abatement, because it does not }X' ^'^^' §^^* 
appear to the court that it was for the same thing ; for the first debitatus cs-" 
writ being general, the plaintiff might have declared for a dis- sumpsit, the 
tinct thing from what he demanded by the second writ ; but, defendant 
when the first is a special writ, and sets forth the particular de- ^i^ ^ '^ 
mand, as in a pt'o^cipe quod reddat, SfC. there the court can other action ' 
readily see that it is for the same thing ; and therefore, though depending for 
the plaintiff be nonsuited before he counts, yet the first shall the same mat- 
abate the second writ, it being apparently brought for the same ^'^ ^" ^ 
thing. ^ ^ did not 'aiiego 

that the plaintiff had declared in it; and by the court, — This is bad, because it cannot be tra- 
versed, whether it be for the same matter or not. 7 W. B. R, Lill. Prac. Reg. 8. Mitchell 
and King, 2 Barnard. K. B. 143. S. P.] 

An action depending in an inferior court cannot be pleaded 5 Co.62. Spar- 
to an action brouf^jht in one of the courts at Westminster for the ""^ ^J^^^^' ^^' 
same thing. ^ [The plaintiff 

counted upon several promises for work and labour in the parish of Saint Mary Le Boio^ 
London; the defendant jjleaded in abatement, that before this action brought the plaintiff 
had libelled in the Admiralty for the same cause of action. Upon demurrer it was insisted for 
the plaintiff) that this was within the rule in Sparry's case, and the whole court gave judg- 
ment against the defendant, quod respondeat ouster. Fitzgib. 513. 5 G. 2. C. B. Ludfield v 
Warden.] ||See 2 Wils. 87.11 

11 If an action is brought in the Court of King's Bench or P^r Lord 
Common Pleas, and the defendant pleads to it an action pending Hardwlcke 
for the same matter in Ireland or the Plantations, this would be 1^^^'^^ Y^f" 
no bar to the jurisdiction of the court here. And the law [a) (a)Diiion V 
should be the same, if such a plea is pleaded to a suit in equity. Alvares, 4 Ves. 

357. 

And a suit pending in England is not a good plea in bar to a Bayley v. 

subsequent suit in the Plantations for the same matter. Edwards, 

3 Swanst. 703. 

It has been determined, that if an action be brought in Ireland Per Lord 

on a bond, and sued to judgment there, that judgment cannot Hardwicke, 

be pleaded to an action in the courts here.jl SeeSris t. 

Saunders, 4 Barn. & C. 41 1*. 

The law will not allow two quare impedits to be brought for 

the same presentation, viz. a second by the defendant against the 

plaintifii when there is one pending in court by the plaintiff 

fl'Jainst the defendant ; ct sic in brevi de partitioned because the 

C 4 defrn.1- 



24 ABATEMENT. 

defendant can have the same remedy on the first writ as he could 

on a second. 
(a) Therefore The law is so watchful against all vexatious suits, that it will 
it is n good neither suffer two actions of the same nature to be pending 

plea '"''•"- for the same demand, nor even two actions of a dififerent na- 
pats, that the ^ ,,% 

plaintiff has ture. {0) 

brought a replevin for the same thing, because in botn cases damages are to be given for that 
caption. 1 H. 6. 27. Doctr. PI. 10. Sed qu. And see Comb. 229. and Skin. 388. [A re- 
plevin depending in the sheriff's court, it seems, cannot be pleaded to trespass for taking cattle. 
2 Wils. 87. White v. Willis.] So in an assize of darrein presentment, a quare impedit de- 
pending for the same presentation is a good plea. Hob. 184. And a quare impedit is said to 
oc depending when it is returned. 2 E. 4. 11. 

Hob. 137. In a quare impedit brought by the Earl oi Bedford against the 

(6) That where Bishop o^ Exeter Q.nd others, the defendants plead that theplain- 
^espass is tiff had brought another quare impedit for the same presentation, 
brought, and which is still depending and undetermined, with an averment 
afterwards re- that it was the same plaint, avoidance, and disturbance ; the earl 
plevmforjhe replies, that since his former writ purchased, the same church 
there must not heing still void, he presented Heniy Curtis to the bishop, who 
be more de- refused him, which is the disturbance he now complains of, and 
fendants in the traverses that it is the same disturbance on which both actions 
rcplevm than ^^j.^ brought : the defendant demurs ; and ruled, the writ 
the action of should abate ; for though there must be a disturbance naturally 
trespass, be- to maintain the action, yet the principal effect of the suit is to 
cause it cannot recover the presentation ; and the nature of a quare impedit is to 
tSe^vement ^^ ^"'^^ °" nonsuit or discontinuance, which this would defeat ; 
that it is una ' ^^^' ^Y ^^is rule the plaintiff might bring a new one, without 
eademque cap- leaving the former suit. And though in this case there was a 
tw. Doctr. new defendant (6), yet the writ abated, because there were two 
Iftheofhe/" q^are impedits against the same man; and therefore a fresh 
action mii^ht defendant could no more enable him to bring a second quare 
not be pleaded impedit, than a new disturbance could. But against several 

in abatement, persons it is said a man may have as many quare impedits as he 
avernngthe ^jjj^ 
fact to be the 

same. In trespass against two defendants, they both pleaded in abateinetil another bill of tres- 
pass pending against one of them : and three judges against Holt, who doubted, held the plea 
good as to both. Carth. 96, 97. 

Mayor, &c. of [If two actions be brought at the same time for the same 
London v. B. thing, with some trifling variation, they may be pleaded each in 

abatement of the other, averring that the cause of action in both 

is the same.] 
Boyccv. Dou- Pf while A. Is unlawfully imprisoned by B., C. commits an 
glas, 1 Camp, assault on him, C. is guilty of the false imprisonment as well as 
^^' B. i and \^ A. sues both separately, the pendency of one suit may 

be pleaded in abatement of the other. || 
Allen, 34. If a second writ be brought tested the same day the former is 

Gilb. Hist. abated, it shall be deemed to be sued out after the abatement of 
C.P. 260. the first. 

Dyer, 227. If ', an action pending in the same court be pleaded to a 

Cartb^. 453. second action brought for the same thing, the plaintiff may pray 
that the record may be inspected by the court, or demand oyer 

of 



517. Lord 



(N) IVhere Defendant mat/ plead in Abatement or Bar, 25 

of it, which, if not given him in convenient time, he may sigh Raym.347. 
his judgment. " ^ 6 Mod. 122. 

So, to an action of battery and false imprisonment brought in Cremer v. 
K. B. the defendant pleaded in abatement another action de- Wickett, 
pending for the same matter in the same court; the plaintiff ^^g qJ^j^^ 
replied, nul tiel record, and prayed an inspection of the record, 517. s.C. 
without giving the defendant leave to rejoin : upon a demurrer 
to this replication, the plaintiff had judgment, because this being 
a record of the same court in which it was pleaded, the 
plaintiff might have prayed that it might be inspected by the (a) Dyer, 227. 
court, if any such there was. (a) The court held too, that upon 
this plea the plaintiff might have prayed oyer of the record 
pleaded, and for want of oyer might have signed judgment, which 
is the quickest method of proceeding. 

[To defeat an informer by a plea of this kind of his right of Comb v. Pitt, 
suing, a defendant must shew a prior right attached in somebody ^r{j "'T' l^^% 
else; and therefore if the pendency of another action by another g g Hutchin- 
person for the same offence, brought in the same term, be son v. Thomas, 
pleaded in abatement, it must be shewn on what particular day 2 Lev. i4i. 
such other action was commenced, that its priority may be as- p^y^^fs^. 
certained. So, if both actions were commenced on the same 21 69. 
day, the defendant, it seems, may shew that the action, which he 
states, was prior in point of time on that day, though it was for- 
merly holden that the right in that case was attached in neither, 
and the court could give no judgment.] 

(N) Where a Defendant may plead either in Abate- 
ment, or in Bar. 

■y^HATEVER destroys the plaintifTs action, and disables Ventr. 249. 

him for ever from recovering, may be pleaded in bar ; but ^ ^F^' ^^• 

the defendant in such case is not always obliged to plead in bar, 2 Ld. Raym. 

but may plead in abatement; as, in replevin for goods, the de- 982. 12 Mod. 

fendant may plead property in himself, or in a stranger, either 182, 6 Mod 
in bar or in abatement ; for if the plaintiff cannot prove property 
in himself, he fails of his action for ever, and it is of no avail to 
him who has the property, if he has it not. 

Outlawry may be pleaded always in abatement, but not in bar, Co.Litt.i28.b, 

unless the cause of action be forfeited. Doctr. PI. 595, 

In personal actions where the damages are uncertain, outlawry 

cannot be pleaded in bar; but in actions on the case, where the §l"'^oo^^°^' 

debt, to avoid the law-wager, is turned into damages, outlawry 2 Ventr. 282. 

may be pleaded in bar ; for it was vested in the king by the for- 3 Leon. 197.* 

feiture, as a debt certain and due to the outlaw ; and the turning ^^o- ^''z. 204 

it into damages, whereby it becomes uncertain, shall not divest ^*^"' ^^' 
the king of what he once lawfully possessed. 

Outlawry may be pleaded in bar, after it has been pleaded in 10 H. 7. 11. 

abatement, becaue the thing is forfeited, and the plaintiff has no 2 Lutw. 1604. 
right to recover. 

Alienage may be pleaded either in bar or abatement; but with ^^o- Denizen, 

this 



81. 103. 
Bull. Nisi Pri. 
34. 



20 ABATEMENT. 

loCo.Litt. this difference (a), that alienage can be only pleaded in abate- 

129. b. uient to an alien in league, but may be pleaded in bar to an 

||See Brandon ^ijeu enemy, because the cause of action is forfeited to the king, 

^T^'^i'r 23ll ^ * reprisal for the damages committed by the dominion in 

(a) But 7M. of enmity. 

this difterence, for in either case the ground of the plea is the incapacity of an alien to take, 

or at least hold, that which is the object of the suit. 

Harman v. P" ^" action on a policy, if the parties interested are neutrals 

Kingston, when the policy was effected and the loss happened, and became 

3 Cainp. 150. alien enemies before action brought, this can only be pleaded in 

Flindt V. abatement ; for this only suspends the remedy, and if peace be 

isSt, 260. ; restored it revives. || 

and sec 4 East, 502. 

Combe v. Pitt, [The pendency of a prior action may be pleaded either in bar, 

f ^^^' V^^' or in abatement ; though it is said in the case of Bains v. Blacks 

Rep 21^6* hourrie {b) to be pleadable only in bar.] 

IITnis applies only to popular actions.|| 

Carth. 136. In an action of debt on a judgment obtained, the defendant 

(c)Carth. 1,2. cannot plead a writ of error brought and pending, either in bar 

[ButQu.c/viJe Qj. jjj abatement; but in one place it is said (c), it may be pleaded 

Ld. Ravin. 47.1 ^^ abatement, though not in bar. {d) 

(d) But the court, on motion, will stay proceedings. IJTidd. 551. 1 145. (9th edit.)II 

10 Mod. 112. A man may plead in bar or abatement to a sci. fa. as well as 

to other actions. 
6 Mod. 103. In replevin, if the defendant will take advantage of a variance 

' ^'^^^ i^ the place where the taking is laid, from that in which it really 
mult be ^^^* h® must plead it in abatement. 

pleaded in abatement, and cannot be pleaded in bar. Salk. 3. pi. 8. 2 Ld. Raym. 1016. 
Carth. 244. Show. 98. [But in Barnes, 353. it is said that it is considered as a plea in bar, 
and not in abatement, it not being necessary to file any affidavit with it, or to plead it within 
four days after the delivery of the declaration.] 

Comb. 483. In debt on a bond the defendant pleads the condition for the 

bIw ^ Ld payment of three several sums at three several days, and that he 

Raym. 345. ^^th paid two of them at the days limited, and the third is not 

yet come, and concludes in abatement ; and it was argued, that 

this ought to be pleaded in bar, and not in abatement : for in 

every plea in abatement the defendant ought to shew the plaintiff 

how to bring a better writ, and here he shews that he ought to 

have none at all, the day of payment of the third sum not being 

yet come ; as, in an action for an attorney's fees, if the defendant 

pleads that the plaintiff delivered no bill of them to him, he ought 

to conclude in bar ; and of this opinion were the court. 

Comb. 375. The plaintiff in bar to an avowry pleaded a distress for the 

Sully V. same duty in other lands chargeable: and Holt said the plea 

was nought ; for it should have been pleaded in abatement of 

the avowry, that a former replevin was depending (if the truth 

was so), or if determined, then levied by distress, et issint riens 

QiTere. 

Mayor and ||A mere misnomer of a plaintiff, whether a body politic or 

urgcssca of natural, is pleadable only in abatement ; for a new writ may be 

. ' * taken 



(O) Bilatori^ Pleas, how restrained, 27 

taken out by the right name ; but, if the existence of the person Stafiurd v. 
or the corporation be denied, the plea is in bar : for if there be ^ p^JJ* \q^^' 
no such person or corporation, there is an end of the action. 

So, if in assumpsit by several partners, the defendant would Eckhardt v. 
plead the bankruptcy of one of them, the plea should be in bar; i^^^^^^'j^^, ,„ 
because it shews that that person is incapacitated from suing at ^"^^ * 
all. 11 

(O) Dilatory Pleas, how restrained. 

A S these pleas enter not into the merits of the case, but merely 
tend to delay, the following restrictions have been laid upon 
them. 

By the statute 4 & 5 Ann. c. 16. for amendment of the law, [Ca) An affi- 
no dilatory plea is to be received, unless on oath (a), or probable ^^^'' ^eaTir*^ 
cause shewn to the court. abatement 

that the writ was never returned, though in giving oyer plaintiff had not set it out. 
Sherman v. Alvarez, 1 Stra. 639. Ld. Raym. 1409. S. C. So, to a dilatory plea in the Crown 
Office to an indictment ; Rex v. Grainger, 3 Burr. 1617. but not if pleaded at bar. Fost. 16. 
llSo, to a plea to a scire facias against the heir and terre-tenants of the recoveree, that there 
are other terre-tenants not returned. Phelps v. Lewis, Forrest, 139. So to aid prayer in a writ 
of right. Onslow v. Smith, 2 Bos. & Pull. 584. || Want of addition requires none. Pr. R. 5. 
Aflfidavit to the truth of it by the attorney sufficient. Lumly v. Foster, Barnes, 344. Where 
the affidavit and plea were wrong entitled, the plea was set aside. Clixby v. Dines, Barnes, 
348. So, where the affidavit to an information in the Crown Office was without any title. 
Rex v. Jones, 2 Stra. 1161. The affidavit must be positive as to the truth of every matter 
of fact contained in tbe plea: it must leave nothing to be collected by inference; for per 
Dennison J. the words probable cause in the statute only extend to a matter of record, or 
to some other collateral matter, as to the truth of which there cannot be a positive affi- 
davit. Pearce v. Davis, Say. R. 295. Jilt cannot be admitted after the plaintiff has 
signed judgment for want of it. Phelps v. Lewis, vbi supra)\ For the form of the affidavit, 
see Lill. Entr.] 

No pleas in abatement shall be received after a respondeat y, ^,, , 
ouster, else they would be pleaded in infinitum. 2 Saund. 4*i. 

[But it was formerly holden that more dilatories than one might be pleaded. The!. D. 165. 
a. p. 6. Bract; 400. b. Finch's Law, oG3.'\ ||And so still, where they are of different degrees. 
Thus, the defendant may plead to the person of the plaintiff; and if that be overruled, he may 
plead to the form of the writ.^ Com. Dig. tit. Abatement (I), 4. citing Theol. Dig. lib. x. 
c. 1.11 

They are to be pleaded before imparlance. yelv. 112. 

Lutw. 24. 1 Stra. 520. HTidd's Prac. 659. (9th edit.) and ant^ (A).|j 

[They cannot be pleaded at the same time with a plea in bar.] Cas. Temp. 

Hardw. 135. 

When issue is joined on them, if found against the defendant 2 Show. 42. 
it shall be peremptory. [2 Wills. 367.] 

Nothing shall be pleaded in abatement of a scire facias upon a Salk. 2, p. 5. 
judgment that was pleadable in the original action ; for it would 
be unreasonable that the defendant should disable the plaintiff 
from having his execution after he has admitted him able to have 
his judgment. 

Though a plea in bar, being certain to a common intent, is Cro. Jac. 82. 
good ; yet every dilatory plea must be certain to every intent. [3TermR.i85.] 

[A dilatory plea must be pleaded within four days (the first Irnp.K.B.259. 
and last both inclusive) {h) after the declaration is delivered, if £ j*^^-^\ 



28 ABATEMENT. 

T. Webb, it be in term time ; but if in vacation, or within less than four 

iTcrm R. 277. (^ays from the end of the term, it may be pleaded (there being a 
(c) Doughty V. special imparlance) within the first four days inclusive of the 
4Tcrm7t.520. "6xt term, as of the preceding term; and within that time it must 
Brandon v. be.//erf, (for it is not sufficient that it be delivered only,) whether 
Payne, Ibid, a rule to plead be given or not. (c) Sunday is reckoned as one 
\\^ i-^A^ ' ^^ ^^^ ^'^^^ days, though it happen to be the last, in which case 
s^? 1 Chitt. ^^® P^^* mvLsi be filed on the Saturday. (<f) 

R. 704.||~ (rf) Harbord v. Pcrigal, 5 Term R; 210. ; but contrd Lee v. Charleton, 3 Term R* 
642. 

jT . It is inadmissible after the rule for pleading is expired (a), or 

V.Ward after forfeiture of a bail-bond. 

Barnes, 331. {a) 3 Salk. 519. 

Kilwick V. It is not an issuable plea within an order for time to plead 

Maidman, ^-^jj j|^g ^g^^i terms. 

1 Burr. 59. * 

Wilkes V. Earl But the court will, ex dehito justitice, compel the plaintiff to 
**V^m'^^''' entitle his declaration of the true day on which it was filed, in 

2 vvi Is. 256. order to give the defendant an opportunity to plead in abate- 

ment. 
Hutchinson v. |j And a declaration, whether it be in chief or de bene esse, is 
^t*"'r °"^y ^^^ ^^^^ from the time of notice ; so that the four days in 

"^™ * which to plead in abatement do not begin to run till after 

notice. 
Dimsdale v. If the defendant put in bail within the four days, and give 

Nielson, ^ notice of justifying them, he may then plead in abatement ; 
BinnsV°° ^"^ ^^^ P^^^ ^^^ stand good, should the bail be ultimately per- 
Morgani 11. fected. 

East, 411. It is the' same whether in a town or country cause. Hopkinson v. Henry, 
13 East, 170. 

Douglas v. But the defendant cannot plead in abatement before the plain- 

?^u"'. o . tiff has declared. 
2 Chitt. R. 7. 

Saunders v. ^or before defendant has put in special bail, or has appeared. 

Owen, 2 Dow. & Ry. 252. Wakefield v. Marden, 2 Chitt. R. 8.; but see 4 East, 348. 4 Maule 

& S. 332. 

^ ^^ If a plea in abatement is not signed by counsel, the plaintiff 

De Norman- --j ^r-*- 14.11 

ville v. Meyer, ^^y sign judgment, for it is no plea at all. 

1 Chitt. R. 209.; and see 3 Taunt. 386. 

Jennings v. "^O ^^^^ ^^ ^'^^ ^^^^ ^^ ^^^ time. 

Webb, 1 Term R. 277. ; and see 5 Term R. 210. 7 Term R, 298. 

p P So if no affidavit of the truth be annexed, or a defective 

Forre5*i39. affidavit. 

Tidd, 640. Bray v. Haller, 2 Moo. 213. Richards v. Setree, 3 Price 197. Forrest, 144. 

1 Stra. 638. ^^ ^^ plaintiff may move the court to set it aside. 

2 Stra. 705. Tidd. 640. ; ted vide 2 Moo. 213. 

Rex v Cooke ^"^ ^^^ court will not, upon motion, quash a bad plea in 

2 Barn. & C. ' abatement. 

618. 4 Dowl. &R. 114. ; and see 4 Taunt. 668. 

Though the affidavit is sworn before the defendant's attorney, 
MrtTewman. the plea is not a nullity. || 

3 Maule &S. ^54. 

(P) Of 



(P) Of the Manner of Pleading in Abatement, <§r. 29^ 

(P) Of the Manner of pleading in Abatement, and 
the Proceedings and Judgment on such Plea. 

nPHE defendant cannot plead two outlawries, or two excom- Carth. 8, 9. 

munications in abatement, duplicity being a fault in abate- 
ment as well as in bar. 

In pleas of abatement which relate to the person, there is no Salk.4. Carth. 
necessity of laying a venue, for all such pleas are to be tried j^^' ^^^ ° * 
where the action is laid. IJNeale v. 

De Garay, 7 Term R. 243.j| 

If a defendant plead matter in abatement and conclude in bar, 3 Roll. Rep. 
this shall be esteemed a plea in bar, and the court will give final 64. Lev. 312. 
judgment thereupon; because by pleading to the action the writ Mod. 214. 
is admitted to be good, and he puts the whole matter upon his f ^^"", ^^^' 
PJea.(«; of Medina and 

Stoughton, 1 Ld. Raym. 595. Holt said, that if a man plead matter which goes in bar, but 
begin and conclude his plea in abatement, it will be a plea in abatement ; for it is the beginning 
and conclusion that make the plea. See 1 Sid. 18f?, 190. But if he begin in bar though he 
conclude in abatement, or conclude in bar though he begin in abatement, it will be a plea in 
bar. Vide also 1 Ld. Raym, 694. JlSee Godson v. Good, 6 Taunt. 587. 2 Marsh. 299. where 
this doctrine was confirmed. || 

So, if a man plead in bar, and conclude in abatement, this 6 Mod. \03. 

shall be esteemed a plea in bar ; because he could have no writ, v'^J^u* t\ f *^' 

if he could have no action ; and where there could be no action, n^\ ggg \^f,!^^ 
the dispute about the writ would be insignificant, {b) 

A plea in abatement may be good, though it contains matter Mod. 214. 

in bar; but this is to be understood of such pleas as maybe loH. 7. 11. 
pleaded either in disability or in bar ; as alienage, outlawry, S^c. 

If a matter, which may be pleaded either in abatement or bar, g^ij^^ j^y^ 

be pleaded in abatement only, if the plaintiff reply or demur in 10 Mod. 112. 

bar, this will be a discontinuance (c) ; because the plaintiff does Carth. 107. 

not maintain his writ, and the defendant may have other matter 5,^ J^* ?).^' 

in bar, from which he would hereby be excluded. C.P.259. See 
2 Ventr. 179. (c) But it was aided by verdict. Salk. 218. [So, the court will give leave to 
amend. 1 Wils. 502.] 

But, if the defendant begin such a plea in bar and conclude Ventr. i36. 
in abatement, or begin in abatement and conclude in bar, there, v.""*, * 
the plaintiff may reply or demur to it, either as a plea in abate- r^^n qJ. if j^ 
ment or in bar ; and if he demur, or plead to it as a plea in bar, this case the 
then the judgment is final [d) : for he has closed widi the de- plea be not 

fendant to put the plea to the judgment of the court, as a bar to if"pe''f^ct, and 
^1 ^. ^ * J t) » tiien, though 

the action. the plaintiff 

have discontinued he is entitled to judgment of respondeat ouster. Bonnar v. Hall, Ld. 
Raym. 339. Lug v. Godwin, Id. 393. Marshall v. Charleton, 1 Barnard. K. B. 468.] 

But, if he demur, or reply in abatement, as he may, then the 3 Lev. 120. 
judgment is quod defcndens respondeat ouster ; for then only the r%]; '*''* ^°^' 
writ is put in judgment before the court; and the plaintiff, by do not' w^rant 
putting the writ only in judgment to the court, has waved the the doctrine 
benefit of putting that matter in judgment to the court as a plea in the text.] 
to the action; and if the judgment were not in abatement, it 
would not be pursuant to the defendant's prayer. 

Every 



$0 ABATEMENT. 

5 Mod. 152. Every pica in abatement is either to the writ or count; If the 
said areuendo. action is brought by original, then the plea is petit judicium de 
11(a) 'lliis is brex>ey and it must conclude in the same words (a): it'it is to the 
so where the tleclaration, then it must he petit jiuUcinm de hilld et narrationey 
mauer an- ^^^'* ^^^^" ^"^ narratio are the same, {b) 

parent on the writ; but where it is of matter extrinsic, it is said not to be formal to beg^t 
with praying judgment of the writ, but only to conclude the plea in that manner. Moor, 
30.pl. 99. 1 Lutw. 11.; and see 2 W. Saund. 209. note(l).|| [(A) All pleas to the jurisdiction 
conclude to the cognizance of the court, praying "judgment whether the court will have fur- 
ther cognizance c J the suit :" picas to the disability conclude to the person, by praying "judg- 
ment if the said /}.,the plaintitf ought to be answered:" and pleas in abatement (when the 
suit is by original) conclude to the writ or declaration, by praying "judgment of the writ or 
declaration, and that the same may be quashed," cassetur, made void, or abated; but if the 
action be by bill, the plea must pray "judgment of the bill," and not of the declaration, the 
bilt being bicre the original, and the declaration only a copy of the bill. 3 Bl. Comm. 303.] 
||Whcre the proceedings were by bill, and the plea prayed judgment of the writ and declar- 
ation founded thereon, it was held bad on demurrer. Attwood v. Davis, 1 Barn. & A. 172. 
and see 2 Maulc & S. 484. || 

10 Mod. 112. It is said to be the conclusion of a plea, and not the matter of 
Show. 4. it, that makes a plea in abatement; so that should a man plead 

ll\ TJ?*"^' ^^^* ^ P^^^ ^^^^ ^^^ ^^^ matter of it might have been pleaded in bar, 
erroneou"- ^^^ conclude petit quod breve cassetur, it would be but a plea in 
it would be a abatement (c), and the judgment would be no other than a 
plea in bar, respondeat ouster; so, vice versa, a plea in abatement, pleaded in 
and final judg- fo^jjj ^f ^ pjg^ -^^ |j^_ would be a plea in bar, though an ill 
ment would ^„„ fj\ ^ a 

given on ^ne. {d) 

it; for if the plaintiff has no cause of action, he can have no writ. See 2 W. Saund. 209. 
c. notd. {d) And upon demurrer to it, there will be a general judgment for the plaintiff, not 
judgment oi respondeat oxister. Nowlan v. Geddes, 1 East, 634. Wallis v. Savil, 1 Lutw. 41. 
There seems however to be this distinction between pleas in abatement and pleas in bar ; that 
in the latter the court will give that judgment, which upon the whole record appears to be the 
proper judgment, though it be not that which the party has prayed for ; but that in the former 
they will give only the particular judgment prayed for. Le Bret v. Papillon, 4 East, 502. 
Chamley v. Winstanley, 5 East, 271. Rex v. Samuel Shakspeare, loEast, 85.|| 

6 Mod. 236. If a dilatory plea be pleaded, and the plaintiff take issue upon 
per Holt. jj^ Yie may conclude with a petit judicium et damna, because there 

final judgment shall be : but, if a dilatory plea be pleaded, which 
the plaintiff does not deny, but confess and avoid, he must con- 
clude in maintenance of his writ ; as, if the defendant plead an 
attainder in disability of the plaintiff, and he plead a pardon, he 
(e) 3 Mod. must not conclude with a petit Judicium et damna {e), but in 
281. S. P. maintenance of his writ 

3 Lev. 120. If there are four defendants, and after several continuances 

three of them plead the death of one of them in abatement, viz, 

petunt judicium de breve et quod breve illud cassetur; this is ill in 

its conclusion, and should have been petunt judicium si curia ulte- 

rius p'ocedere velit. 

Salk. 220. If the defendant demur in abatement, the court will give final 

pL 9. 6 Mod. judgment, because there can be no demurrer in abatement; for 

wfmbtsli V "* ^^the matter oi abatement be dehors, it must be pleaded; if in- 

Willoughby, trinsic, the court will take notice of it themselves. 

PI. Comm. 73. there is an instance of a demurrer in abatement of a writ, for an insufficiency 

appearing on it, which authority is countenanced by Theol. Dig. 1. 15. c, 9. §1. Dy. 341. 

Lutw. 1644. This precedent from Plowden was cited by Ei/re J. when the judgment in the 

text was given. The judgment upon the demurrer, if against the defendant, will be final. 

3 Lev. 



(P) Of the Manner of Pleading in Abatement, S^x, SI 

3 Lev. 223.] But a demurrer in abatement to an indictment for a capital ofFence, or appeal 
of death, shall not conclude the party, but he shall have leave to answer over to the offence. 
2 Hawk. P. C. 354. 

If there be two defendants, and they plead two several pleas Hob. 250. 
in abatement^ and there be issue to one, and demurrer to the 
other, if the issue be found for the defendant, the court will not 
proceed on the demurrer; et sic vice versa; for in both cases 
the writ being once abated, it would be unnecessary to judge 
whether it ought to abate on the other's plea. 

Where the matter of abatement appears on the face of the Moor, so. 
record, the plea should begin and end with a petit judicium de Carth.365. 
brevi; but where the matter is dehors, the defendant should only f^e^c'i^^fqs 
end his plea with a petit judicium. ijSee 2 Will. 

S%und. 209.11 

On the plea in abatement, no advantage can be taken of the Salk. 212. 

errors in the declaration (a) ; as nothing but the writ is then in qZI Y^^q' 

question, for nothing else is pleaded to. u) Biit it 

seems it may, if the matter of the plea in abatement be pleadable in bar* Lutw. 1604. 

If on a plea in abatement, a respondeat ouster is awarded, and Carth. 447. 

afterwards the defendant pleads in chief, and there is a verdict c m d "^qg^^* 

for the plaintiff, yet, if the plea in abatement does not appear to Car th. 499. 
have been entered on the nisi-prius record, judgment will be 
arrested ; for, it being entered on the plea-roll, (which was in 
court,) it must be mentioned in the nisi-prius roll, otherwise it 
does not appear that it was a verdict in the same cause. 

The judgment for the defendant on a plea in abatement is quod Yelv. 112. 

hrve or narratio cassetur, and for the plaintiff, a respondeat ouster; 2 Show. 42. 

but if issue be joined on a plea in abatement, and it be found for ^^^'y^^^' 

the plaintiff, it shall be peremptory against the defendant {b) ; j W\\s. 302. 

and the judgment shall be quod recuperet, because the defendant {b) Though 

choosing to put the whole weight of his cause on this issue, when the tenant or 

he might have had a plea in chief, it is an admission that he had ^^emandant 

.Pic I \ who 10ms 

no other defence, (c) -^^^J^ be an 

infant. 1 Lev. 163. But not so on indictments for capital offences. 2 Hawk. P. C. 334. [(c) In 
an action that sounds in damages, the jury who try this issue must assess the damages: their 
omission to do so cannot be supplied by a writ of enquiry, but a venire facias de novo must be 
awarded. Eichorn v. Le Maitre, 2 Wils. 368.] 

[But on a demurrer to a plea in abatement, the judgment Theol. Dig. 
against the defendant shall only be to answer over; because, 1. 16. c. 11. 
though issues in fact are within the conusance of the party, \l^' \a'c 

° . 1 ^ *^ •" 163. So, if 

issues in law are not. the demurrer 

be to a replication to a plea in abatement. 1 East, 542.1| 
And the same judgment shall be given, though the defendant Putt v. 

join in demurrer to it, as to a plea in bar, because the fault Nosworthy, 
' . . , -.1 ^1 I • ^-rp r » I Ventr. 135. 

originates with the plaintiff. But see Lutw. 

197. 1643. 1665. But see above, whether this be not a discontinuance? 

In a plea in abatement in C. P. the plaintiff may enter a 7iil Osborne v. 
capiat per breve without leave of the court.] Haddock, 

. Where, w^onn respondeat ouster, the defendant pleads the ge- Salk.4. p. 11. 
neral issue, the plaintiff shall sign judgment, if the defendant's 

attorney 



3^ 



ABATEMENT. 



Salk.7. p. 18. 



Harries V. 
Jamieson, 
5 Term H. 
555. 



Powell V. 
FuUerton and 
another, 2 Bos. 

& Pull. 428. 

and see 2 Wm. 
Saund. 210. b. 



Spencer's 
case, 6 Co. 10. 



6 Co. 11. a. 
1 Salk. 393. 
Cro. Car. 294. 



6 Co. 10. b. 

Lutw. 296. 
1 Salk. 593. 



attorney on delivering back a copy of the issue will not pay for 
it ; and it seems that the old course was to deliver in a copy of 
the whole record, viz. the declaration, plea in abatement, Sj-c. 
and issue ; but the court made a rule that for the future a copy 
of the declaration and issue should only be paid for. 

Upon a respondeat ouster, no notice need be given of it, for 
the defendant is supposed to be attending his cause in the paper 
to maintain his plea. 

II If a plea in abatement profess to answer the whole declar- 
ation, and yet in truth answer only part of it, it will be bad. 
Thus on a writ in debt for 1066/. the plaintiff declared for 
1000/. borrowed by the defendant of the plaintiff, and in a second 
count for 661. for interest of money lent by the plaintiff to the 
defendant. The defendant pleaded in abatement of the writ, 
that " the said sum of money in the said writ mentioned, and 
thereby supposed to be borrowed of the plaintiff," was borrowed 
by the defendant and others, and not by the defendant sepa- 
rately. The plea was demurred to because it answered only 
one of the causes of action, viz. that mentioned in the first count ; 
and the court held it bad for that reason. 

But, if a plea in abatement contain matter which goes in part 
abatement of the writ only, and conclude with a prayer that the 
whole writ may be abated, the court may abate so much of the 
writ as the matter pleaded applies to. |l 



[(Q) Of the Writ by Journies Accompts.] 



w 



HEN an abatement of a suit happens without any fault 
imputable to the plaintiff, he is permitted to sue out a 
fresh writ by journies accompts ; which is quasi a continuance of 
the first writ, and placeth him in the situation in which he 
would be supposing that he were still proceeding on that writ ; 
for the defendant can avail himself of no matter which ariseth 
subsequent to the time of the first writ, and could not have been 
pleaded to it. 

But this second writ is not suable at any distance of time after 
the abatement of the first, but must be prosecuted per dietas com' 
putataSf that is, recently, as soon after as reasonably may be. 
What is a reasonable time is a matter in the discretion of the 
court. 

This writ being in a manner a continuance of the first, must 
of course be brought in the same court, and for the same matter. 
It ought regularly too to be between the same parties ; but it 
may be used by another person than the original plaintiff, if 
there be a privity between them ; as, if the original plaintiff be 
executor until his son come of age, the son upon coming of age 
may take out this writ, but not so, if he be administrator du- 
rante niinore cctate of the son ; for in that case, as they derive 
their titles from different persons, the one from the ordinary, the 
other from the testator, there can be no privity. 



(R) Foreign Plea. S3 

If the plaintiff in qume impedit die pending the writ, and after Bro. Joum. 
I'lii II- -11 Ace n 9."^ 

the SIX montlis have elapsed, his executors are not entitled to q j^j {qq 
this writ. "'^" 

A judicial writ shall never be by journies accompts, because it eCo. lo. 2. 
never abates for want of form. 

(R) Foreign Plea. 

A FOREIGN plea (a) is when the defendant pleads such plea 2 Lil. Pr. 
as carries the cause out of the court wherein it is laid, by Reg- 374. 
shewing that the matter alleged is not as to its trial within the 9^^' ^°,^' 
jurisdiction of that court. ingrosTed o^n 

parchment, and signed by counsel. 2 Lil. Reg. 374. jjSee the form of it in Lil. Entr. 475.1| 

As this plea is merely dilatory, and ousts the court of its juris- ^it- Rep. 230. 
diction, it was holden, even before the statute of 4 & 5 Ann. f'^'^'|^^'j 
c. 16. that it must be on oath, and before imparlance {b) ; and if 97. Vj) Ventr 
the defendant refuse to make oath of the truth of his plea, the iso. 
plaintiff may sign judgment as upon a nihil dicit. 

If a defendant in a corporation court plead a foreign plea, Hetl. 126. 
which is collateral ; as, in debt upon a bond, if he plead a release Lit. Rep. 256. 
made in a place out of the jurisdiction of the court, it need not ^' ^* ^^^°^^' 
be received without oath : but, if in covenant, or debt for money 
to be paid at another place, he plead payment accordingly, or 
covenants performed in the place limited, which was out of their 
jurisdiction, it ought to be i-eceived without oath. 

If there be a cause removed from Canterbury into B. R. by Pasch. 26. 
habeas corpus^ and the plaintiff declare here upon a demise in Car. 2. in^.U. 
London of a house in Canterbury ,- if the defendant plead an entry jyj^j j jg 
and ouster in Canterbury^ so, that this cannot be tried here; this is S. C. 
not a foreign plea, because it arises naturally upon the case : so, if 
matter arise within two counties, and the plaintiff lay it in one, 
it is not a foreign plea for the defendant to plead any matter in 
the other. 

In real actions in London{c) if a foreign plea be pleaded, it 3 H. 4. 12. 

shall be sent into the Common Pleas to be tried (tZ); but otherwise \?^ - "^, 
.. - - , . V / ' loreign pleas 

It IS in personal actions. in Wahs shall 

be fried, vide the statute 34 & 55 H. 8. c. 26. (rf) This is within the equity of the statute of 
Glouc. c. 12. which vide expounded 2 Inst. 324, 32 5. which extends to real actions only wherein 
voucher lies, and not to personal. 2 Leon. 57. Saund. 98. 

Ancient demesne, and all pleas of privilege, are pleas to the ^ Mod. 335. 
jurisdiction, but not foreign. 

If a person be sued in an inferior court on an obligation con- Style, 22s. 
ditioned to pay money out of the jurisdiction of such court, and J^"||"^y ^• 
the defendant plead payment according to the condition ; this is *^ ^^'^' 
not such a foreign plea as need be on oath. 

So, if in covenant brought in London for payment of a certain Sid. 234. 
sum of money on the return of a ship, the defendant plead, that Collins v. 
the ship returned to such a place in Cormmll^ and thereupon the '^""""• 
plaintiff demur, this plea is not good ; for the matter being tran- 
sitory, the defendant cannot oblige the plaintiff to change his 

Vol. I. D action, 



34 



ABATEJVIENT. 



Ventr. 180 
St. Aubin 
V. Cox. 
1 Mod. 81. 
S.C. 



Carth. 402. 

Chumley t. 

Broom. 

5 Mod. 335. 

S.C. 12 Mod. 

123. S. C. 



6 Mod. 146. 
Sparks v. 
Wood. 



sLutW. 1023. 



1 p. Wms. 
476. pi. 135. 



action, but must plead to it in such place as he had laid it : and, 
had the matter been local, then it would have amounted to a 
foreign plea, which must have been put in on oath. 

But, where a prohibition was prayed for to the court of the 
Compter in IVood Street^ London, to an action of debt there com- 
menced, for that the defendant had pleaded before any imparl- 
ance, that the cause of action did arise at a place out of their 
jurisdiction, and offered to swear his plea, and they refused to 
accept this plea ; upon this matter a prohibition was granted ; 
for inferior courts have not cognizance of transitory things 
which arise in places out of their jurisdiction : but then it is not 
sufficient to surmise such matter for a prohibition ; but a plea to 
that effect must be tendered in the inferior court, and that before 
imparlance, and it must be on oath, and then, if refused, a 
prohibition shall be granted, or upon such refusal a bill of excep- 
tions may be made. 

In debt brought in B. J?, the plaintiff lay the visne in such a 
place within the county palatine of Chester^ which county was 
also in the margin of the declaration : the defendant without 
imparling pleaded by attorney, that he is, and at the time of 
the action brought was, resident at the said place within the 
said county ; and so prayed judgment, whether the Court of B. It. 
ought to hold plea of this matter. The plaintiff taking this 
to be a foreign plea rejected it, as not being on oath, and 
signed judgment : hvitper Holt C.J. — A foreign plea is where 
the action is carried out of the county where it is laid, which in 
this case was not done ; so that this is only a plea to the juris- 
diction of the court, which is never sworn ; so the judgment 
was set aside. 

In debt brought in London, a prohibition was moved for, and 
ruled nisi, upon suggestion, that the defendant had tendered for 
plea below, that the cause arose out of their jurisdiction, and 
offered to make oath of the truth of his plea; and it was shewn, 
that he tendered his plea after the court was up ; whereas it 
should be in propria persona, and in court ; and though an 
affidavit was offered in B. R. of the truth of his plea ; and one 
lurner's case was quoted, where a prohibition had been granted 
upon such an affidavit here above without oath of it below ; yet 
per Powell, Gould, and Po'jois, absente Holt, the rule was dis- 
charged ; for in all pleas that oust a court of jurisdiction, whether 
inferior or superior, there must be oath in tliat very court of the 
truth of the plea. 

If one be sued in an inferior court for a matter out of the juris- 
diction, the defendant may either have a prohibition from one of 
\he \BiVf conxis oi Westminsta-hall ; or, in regard this may hap- 
pen in a vacation, when only the Chancery is open, he may move 
that :ourt for a prohibition : but then it must appear by oath 
made that the fact arose out of the jurisdiction, and that the de- 
fendant tendered a foreign plea before imparlance, which was 
refused. And if a prohibition has been granted out of Chancery 

imp-o- 



ACCOMPT. ^ 

impravidif and without these circumstances attending it, the court 
will grant a supersedeas. 

If it appear on the face of the declaration, that the matter is Id. 477. 
out of the jurisdiction of the court, then a prohibition will be («) In a 
granted without oath of having tendered the foreign plea. And "^^^on for a 
in these cases equity imitates the common law. {a) [^ an eccle- 

siastical court, as to more than appears on the face of the libel, there must be an affidavit of 
the truth of the suggestion. 2 Saik. 549. 

On a rule to shew cause why an attachment should not be Hil. 12G. 2. 
granted against the mayor of Marlborough for refusing to accept y ?' 
the defendant's plea in his court, it was holden that it was not CuU. llSee 
sufficient for a defendant in a court below to bring his plea into Litt.R. 236. 
court, and offer to make oath of the truth of it, but that he must * ^'d. 234. 
tender his plea with an affidavit annexed of the truth thereof, and ^ Salk 515 il 
that this must be done before a general imparlance, but he may ' 

pray a special imparlance, and then come at the next court and 
plead. It was also holden, that the proper way of proceeding 
was not by attachment, but that a prohibition should be moved 
for. And so, in the principal case, the rule for an attachment 
was discharged. 



ACCOMPT. 



•^PHE proceedmffs m this action bemg difficult, dilatory, and Salk. 9. 
J- • /7\*^-..- ij 1 -71 •£•*!. i. Garth. 89. 

expensive (^), it is now seldom used, especially ir the party q]^^^ q^ 249 

have other remedy, as debt, covenant, case ; or if the demand Vern. 283. 
be of consequence, and the matter of an intricate nature ; for in 47o. 2 Vern. 
such case it is more advisable to resort to a court of equity, where \J^' Eq. Ca. 
matters of accompt are more commodiously adjusted, and deter- 2 Ark 410. 
mined more advantageously for both parties ; the plaintiff being 2 Ves. sss. 
entitled to a discovery of books, papers, and the defendant's [(^) From the 
oath ; and on the other hand, the defendant being allowed to experiment 
discount the sums paid or expended by him ; to discharge him- actjon Jq*^ 
self of sums under forty shillings by his own oath (provided he the case of 
swears positively, and not as to belief only) ; and if by answer or Godfrey v. 
other writing he charges himself, by the same to discharge him- Simnders, 
self, which will be good, if there be no other evidence : farther, j^g proceed- 
all reasonable allowances are made to him ; and if, after the ings seem not 
accompt is stated, any thing be due to him upon the balance, he ^o deserve 

is entitled to a decree in his favour. f « character 

here given of 
them. A matter which had been fruitlessly depending in Chancery upwards of twelve years, 
was thoroughly examined, and finally determined in this form of action in the course of two 
years,] 

D 2 JlAnd 



36 ACCOMPT. 

13 Vm. 876. IJAnd from thus being able to afford a more easy and more 

complete remedy in matters of accompt, courts of equity now 
assume in those cases a concurrent jurisdiction with courts of law. 
Dinwiddle r. Jt is to be remembered, however, that to sustain a bill for an 

f ■^'T fvv^'l accompt there must be mutual demands, except in the case of 
v.^Cooper,^ ' dower or of a steward, which stand upon their own specialties. 
Scac. 1791*. The case of executors (a) upon payments made to their testator 
cited I&id. may be another exception. 1| 

We shall, therefore, under this head, but briefly consider, 

(A) Against whom, either by the Common Law, or by 

Statute, this Action lies. 

(B) Of the Manner of bringing Accompt, with respect 

to the Persons against whom it is brought; and 
herein of charging one as Receiver when Bailiff, 
et vice versa. 
'C) The Nature of the Demands for which it may be 
brought. 

(D) In what Cases this is the proper Action, or some 

other may be brought. 

(E) What shall be a good Bar to this Action. 

(F) Of the Auditors, and what shall be a good Dis- 

charge before them. 

(G) Of the Judgment, and subsequent Proceedings. 



(A) Against whom, either by the Common Law, or by 
Statute, this Action lies. 

sH. 4. 12. b. "DY the common law, accompt lay only against a guardian in 

Co. Liu. 172. -*-' socage (i), bailiff, or receiver, or by one in favour of trade 

F N B 117 E ^"^ commerce, naming himself merchant, against another, nam- 

2 Inst. 404. ing him merchant, and for the executors of a merchant; for 

nCo. 90. a. between these there was such a privity, that the law presumed 

2 Roll. Abr. them conusant of each other's disbursements, receipts, and 

ZJIP" acquittances. W 

Marlcbridge^ 52 H. 3. c. 17. is usually recited in the writ, as if the writ were warranted by 
that statute only. Mayn.487. F. N. B. 118. (A.) But accompt lay against the guardian in 
socage at common law, and the statute was merely in affirmance or declaration of it. Co. 
Litt. 89. Cro. Car. 2i.'9. (c) By the prerogative persons could be charged as accomptants, 
notwithstanding a want of privity. 1 1 Co. 89. 2 Roll. Abr. 161.] 

1 Leon. 219. The Statute of 13 Edw. 1. cap. 23. gives an action of accompt 

?(i)B^fT^^ ^° executors; the 25 Edw. 3. st. 5. cap. 5. to executors of exe- 

thLlast' cutors; the 31 Edw. 3. c. 11. to administrators; and by the 

•tatute, if Statute of 4 Ann. c. 16. sect. 27. (d) actions of accompt may be 

one joint-te- brought against the executors and administrators of every guard- 



(B) Of the Manner of bringing Accomptf t|^. , 37 

lan, bailiff, and receiver, and by one joint-tenant, tenant in nant,ortenant 
common, his executors and administrators, against the other as in common, 
bailiff (e) for receiving more than his share, and against his exe- fu*^^' ^^ 
cutors and administrators. tjjg other ' 

could not have this action, unless he actually appointed him bailiff or receiver. Co. Litt. 172. a. 
186. a. 200. b. So, if there had been two executors, and one had received all the debts of 
the testator; for between these there was not such a privity as the law required. Bro. tit. 
Acconipt, 58. 59 E, 3. 28. [But, if two guardians were in comnjon, and one took the entire 
profits to his own use, accompt lay, and the count was to be against him as receiver to theii 
common use. So, of co-partners ; but not so of tenants in common, for they might have an 
assize. F. N. B. 118. J. One joint lessee for years might have accompt against the other, if 
he took the issues and profits to his own use ; for he would otherwise be without remedy, as 
he could not bring an assize. 39 E. 3. 27. b.] \\(e) But one tenant in common cannot charge 
the other as receiver. Walker v. Holyday, Com. R. 272. And when he would charge him 
as bailiff, he must state in the declaration that he and the defendant are tenants in common, 
and that the defendant has received more than his share, else he will not bring his case within 
the statute. Wheeler v. Home, Willes's R. 208. Vin. Abr. tiu Joint-tenants (R), a. pi. 4. 
notes, S. C.|| 

Though an infant may be an executor, or may be charged in Roll. Abr. 117. 
trover, being a tort ; yet, if he be made factor, bailiff, or receiver, p ^' y-^^^- 
he shall not be accounUible for what he does during his infancy, g p ^^^ 
either in law or equity, for the same reason that other acts of his Ca. Eq. 6. 
bind him not; therefore when such a one is appointed factor, his p'-3' 
friends should give security for his accounting. 

If I make J. S. my bailiff or receiver, and he make a deputy, F.N.B.irg. 
I must have accoinpt against the bailiff or receiver himself, and ■* Leon. ,■52. 
not against the deputy, for the receipt of the deputy was to the ^!^!, ji Yf "'* 
use of his master. Potts, where in 

Chancery, on exceptions to a Master's report, it was holden sufficient for a servant or 
apprentice, in answer to a bill for an account, to say in general, that whatever he received was 
by him received, and laid out again by his master's orders. But he must disclose this matter 
in his answer. Vern. 1.36. Harrison v. Hart, Com. R. 41 1. Cary v. Webster, Stra. 480. But, 
where on a bill for an account, and discovery of money received by defendant on the behalf of 
one who became a bankrupt, he pleaded that he received it only as a menial servant to the 
bankrupt, and had accounted for it to him already, and that the commissioners had examined 
him on interrogatories; the plea was overruled. Wagstaff v. Bedford, Vern. 95. 2Ventr. 
358. S. C. Eq. Ca. Afar. 6, p. 5. S. C. cited with a query, whether there were not circum- 
stances of fraud in the case, or a combination between the bankrupt and servant.] East India 
Company v. Henchman, I Ves. jun. 289. 

An apprentice by the name of an apprentice, is not charge- 1 1 Co. S9. b. 
able in acconipt. Though he 

^ IS not charge- 

able for the ordinary receipts upon his master's trade, yet upon collateral receipts, which con- 
cern not the ordinary trade of his master, he is chargeable as well as another. 3 Leon. 6.5. 
But then he must be charged as bailiff or receiver. 2 Inst. 379, 5«0. [Chancery will decree 
an account against the administrator of an apprentice employed as a factor. Eq. Ca. Abr. 6. 
p. 2.] 

(B) Of the Manner of bringing Accompt, with respect 
to the Persons against whom it is brought ; and 
herein of charging one as Bailifi'when Receiver, et 
vice versa. 

TF the king appoints J. S. or he of his own head takes upon 4 Co. 1*.^,. 
himself the charge and care of the estate of a lunatic, he is 

D 3 but 



^S ACCOMPT. 

but in nature of a bailiff, and accountable to the lunatic, his exe- 
cutors or administrators. 
Co.Litt. 172. ^ ^'^^ s^^^' "O'^ t)e charged in accoinpt^ as surveyor, comp- 
(a) So. if a troller, apprentice, reive, or heyward, nor shall a disseisor (a), 
disseisor ap- or other wrongdoer, be so charged ; for, to maintain an action 
points J. S. qP accompt, there must be a privity either in law or by the pro- 
his rents vision of the parties, 

the disseisor cannot have a writ of accompt against J. S. 5 Leon. 24. Dalt. 99. S. P. 

oT? n AK At common law, if a man were disseised, and his entry taken 

2 Roll. Abr. i i i i *• *u c* 

550. (A) But away, he could never recover, by any action, the mesne profats ; 

whether he but if the disseisor made a feoffment in fee, by the statute of 

could have Gloucester^ the disseisee in an assize {b) might have recovered 

an action o damages for the mesne profits, being a continuation of the first 

trespass, seems » i » o 

to have been wrong. 

mnch controverted; for whicli, vide Roll's Abr. 554. ) 1 Co. 51. And. 352. Hob. 98, Roll's 

R 101. Godb.388. Vide Xit. Ejectment. 

But the Chancery interposed, and at last carried the remedy 

farther than had been admitted at common law ; for though hi 

(c) Chan. R. ^jjg g^gg of Otyew and Aprice{c)f which was adjudged 4- Car. 1. 

the court left the plaintifit' to his remedy at common law lor the 

recovery of the mesne profits, and would not assist by their 

(rf) Id. 229. decree {d) ; and though in the case of Eyre and Jadcsoiu 

14 Car. 2. they refused to assess any damages for a trespass, 

for that was a matter determinable at common law, and to be 

ascertained by a jury, yet afterwards they began to make the 

person, who was the disseisor of the mesne profits, accountant 

to him who had the right. And this was first begun where 

lands were settled for the payment of debts; there, such trustees, 

and the heir of the debtor, were accountants to the creditors 

for whom the profits were to be received; and this was very 

clear and plain, because such person came in and took the 

profits under the trust ; and this was settled in the case of Gilpin 

Chan.Ca. and Smith, 18 & 19 Car. 2. Afterwards they came to extend 

80,81. their notions; and the person that took the mesne profits by 

wrong, was taken as trustee for, and accountant to, him that hatl 

^21-41-5* ^^'*^ "ght; and this was settled in the great case of Coventry and 

2 Chan.* R. Halt, which was in the years 33, 34 & 35 Car. 2. and was this: 

259. 261. Sir 'Fkomas Thynn having treated with the Lord Keeper Coventry 

[It is gene- for a marriage between his son and Catharine the dnughter of 

ral y true, ^^ Lord Keeper, the said Sir Tiiomas covenanted to settle lands 
that a court , . i i i r • i • i 

of equity will ^^ "'^ son; but the conveyance was delective, because it wanted 

not decree an the words, that he should stand seised : the son recovered the 
account of lands by a decree in Chancery, notwithstanding the defect in 
whJrefhe ^^^ conveyance, agahist the heir at law of Sir Thomas, the 
title is niersly father, and afterwards came with his bill for the mesne profits ; 
legal, or the plaintifFis out of possession. Tilly v. Bridges, Pre. Ch. 252. Norton v. Frecker, 
1 Atk. 524. Saver v. Pierce, 1 Ves. 232. But from this rule must be excepted all those cases 
where the plaintiff is an infant, or has been prevented from asserting his title by trust, mistake, or 
fraud and concealment on the part of the defendant. Duke of Bolton i?. Deane, Pre. Ch. 516. 
Bennett v. Whitehead, 2 P. Wins. 64.3, Dormer v. Fortescue, 5 Atk. 130. And in such cases 
the court will direct tlie account to be taken from the time the plaintiflfs title accrued, unless 
•pocial circumstaacci require that it should commence from the time of entrv, or filing the 
Mil. Jbid.] 

and 



(B) Of the Manner of bringing Accompty 8^c, 39 

and though the heir at law was entitled to the mesne profits at (a) But equity 
law, because the conveyance was defective, and the first decree, will give re- 
which set up the title under the settlement, had ordered no "ef "n the 
account for the mesne profits ; yet the court, on this bill, carried beyond that 
back the account against the heir at law for all the profits which can be 
received by him; and though it was objected, there was no obtained at 
agreement, nor any trust, that the heir should receive the ^^w, it the 
profits for the rightful proprietor, yet the court resolved, that the°de^and 
he should account from the original justice, which entitled the be uncon- 
proprietor to seek an accoimt against the person who had taken scientiously 
the profits of the land, which in equity and justice belonged to obsmicted; 
him; and though the heir had the title in law, yet since, in such case 
equity and conscience, the estate belonged to another, such heir decreed in 
ought to account with him for the profits he had made of what favour of the 
was his. And from this time equity began to make all persons widow s re- 
account for the mesne profits they had received, to such persons Lajnst the * 
as had the equitable title. But in a case where the husband sold personal re- 
lands for valuable consideration, and the wife, after his death, presentative 
recovered her dower against the purchaser, and brought her bill ^f fu u'^-^^ 
in Chancery for the mesne profits from the time of the death of 3^ account 
her husband, the Lord Chancellor Cowpei' would not relieve of the mesne 
her ; for he said that he could not alter the law of dower, which profits from, 
gave no damages against a purchaser under the husband; and !h !| ™^u r 
he saw no reason in equity to introduce a different rule, (a) the husband. 

Curtis V. Curtis, 2 Bro. Chan. R. 620. The same account has been directed in favour of the 
representative where the widow has died before she had established her right to dower. 
Wakefield v. Child, cited in Fonblanque's Notes on Eq. Tr. p. 147. Wherever a widow- 
resorts to Chancery for her dov/er, (as it seems she may now do in all cases,) the general 
course of that court is to give her an account fiom the time her title accrued. The mesne 
profits are there considered as (what they really are) the widow's subsistence, and not 
m the nature of vindictive damages. 2 Bro. Chan. R. 620. Dormer v. Fortescue, 3 Atk, 
ISO, 131.] 

[Courts of equity, when resorted to for the purpose of an Fonbl. Notes 
account of mesne profits, will in many cases consult the principle °" ^*1* ^'*- 
of convenience ; and therefore Lord Hard'wicke held in Townsend 
V. Ashy-S Atk. 386., That "though the party claiming a share in 
*' the New River water-works had not established his right at 
" law, yet as such right appeared to the court, he ought to have 
" an account of the mesne profits ; for though shares in water- 
" works are a legal estate and corporeal inheritance, yet no one 
" proprietor could receive the profits himself; but the company, 
" or their officers, are the common hand to receive the profits ; 
" and that it would be absurd to send the plaintiffs to law ; for 
*' it would be difficult to bring ejectment for a thirty-sixth part, 
" and bits of land in several counties ; and to bring actions of 
** trespass against the terre-tenants would be very extraordinary ; 
" and therefore, in point of remedy, there could not be a 
" stronger case for an account of mesne profits." 

In cases of hardship, as where an heir at law is disinherited Sympson v. 
on a nice construction of words, the courts deem it inequitable p ''"^'^J^' 
to lend their assistance if there is no infant concerned, anil leave ^' '" ^' 
the party to his remedy at law by entry and ejectment. 

D i Nor 



40 



ACCOMPT. 



Higgins T. 
York Build- 
ings Company, 
sAtk. 107 



Gould V. Tan- 
cred, 2 Atk. 
534. 

Fonbl. 149. 



Lockey v. 
Lockey, Pre. 
Ch. 518, Earl 
of Newburgh 



Nor will they interpose in favour of judgment creditors upon a 
bill to set aside a fraudulent conveyance, and decree an account 
against the debtor and owner of the estate, of rents and profits 
received pendente lite from the filing of the bill ; nor in favour of 
a mortgagee against a mortgagor, left in possession, for any of 
the years back during that possession. In the former case the 
plaintiffs have their legal remedy by elegit ; and in the latter, 
■where interest is not regularly paid, the mortgagee has a legal 
remedy to get possession of the estate, which, if he does not avail 
himself of, it is imputable to his own laches. 

But, where the mortgagee enters, and takes possession, he is 
subject to an account, being in the nature of a bailiff to the 
mortgagor. 

The cases decreeing an account of rents and profits where the 
legal tide is not previously established, proceed upon that respect, 
which, in justice, is due to the interests of persons, who, by in- 
fancy, fraud, 8^c. have been prevented from pursuing their legal 
right ; but it must not be inferred from the extreme anxiety of 
courts of equity to protect such rights, that they will, at any pe- 
riod (a), or under any circumstances, act upon such indulgent 
disposition ; for if an infant neglect to enter within six years alter 
he comes of age, he is as much bound by the statute of limita- 
tations from bringing a bill for an account o^ mesne profits, as he 
v. Bickerstaffe, is from an action of account at common law ; or, if there be a 
r T^R"t^T^ verdict at law against the infant's title, courts of equity will not 
plaintifFhas direct an account of mesne profits, but will merely retain the 
been kept out bill, for the purpose of giving the infant an opportunity to 
of possession estabUsh his title at law. 
by fraud, 

Q.U. Whether equity will not relieve at any distance of time, as no length of time will bar 
fraud? Cotterell v._ Purchase, Ca. temp. Talbot, 63. l|Where the plaintiff had been pre- 
vented from recoTering in ejectment by a rule of the court of law, and by an injunction, both 
of them obtained at the instance of the occupier, who ultimately failed at law and in equity, 
an account was directed from the time the title accrued against executors. Pulteney v. War- 
ren, 6 Ves. 73.|| 

Ferrers v. Fer- It is very seldom, even in the most favoured cases, that interest 
temp. Talb ^^ allowed, in taking the account of rents and profits.] 
2, 5. Robinson t. Gumming, 2 Atk. 409 

J^^'j: ^^''•. " ?• A bailiff" cannot be charged as receiver, because if he be 
understood a ** charged as bailiff" upon his account (i), he shall have allowance 
servant that P^ ^^^ charges and expenses, which he is not entitled to when he 
hath adrainis- is charged as a receiver : also, he is not allowed in an action 
tration and brought against him as a bailiff", to plead that he was before 
lamlfgoods, cl^arged as receiver. 

and chattels, to make the best benefit for the owner, against whom an action of accompt doth 
he for the profits which he hath raised or made, his reasonable charges and expenses de- 
ducted. Co. Litt. 172. a. A receiver is one who receiveth money, and is to render an account 
of It, but IS not allowed any charges or expenses but such as are agreed on by the parties ; 
T? ?"r *^^® ^^ plaintiff is to declare by whose hands he received it. Co. Litt. 172. a. 
If a baihff be charged as receiver it seems the best way is to plead it specially, for he cannot 
take advantage of it after judgment, quod computet. 2 Lev. 126. Freem. 378. Whether a 
person mjiy not in he san:c action be charged as bailiff and receiver, Quturc ; and vide 1 Roll. 

Abr. 



(D) In what Cases this is t fie proper Action, S^c. 41 

Abr. 119. Cro. Car. 240. 3 Keb. 387. 435. In some cases in an action of account against one 
as receptor denariorum, he shall have allowance of his expenses, and shall account for the 
profit he received, or might reasonably receive. Co. Litt. 172. a. 

(C) The Nature of the Demands for which it may 

be brought. 

A N action oi accomptYiQs not for a thing certain ; as, if a man Bro. tit. Ac- 
delivers 10/. to B. to merchandize with, he shall not have compt, 35. 
account of the 10/. but of the profits, which are uncertain. rown. . 

No action of acccompt lies for rent reserved on a lease. So, if ^o^l- ^br. 1 16. 
a lessee of goods waste them, yet no action of accompt lies against 
him. 

If the bailee of goods to bail over waste them, or refuse to de- Roll. Abr. lie. 
liver them, no action o? accompt lies, but an action of detinue or Owen, 86. 
trove?' and conversion. 

If A. hath a term for years in a rectory, and tythes being set ^ Leon. 24. 
forth and severed from the nine parts, B. without any pretence 
of title, carries them away and sells them, yet A. shall not have 
a writ of accompt against B. for after severance the tythes im- 
mediately vested in A., and the taking by B. was merely wrong- 
ful, and therefore without privity. 

(D) In what Cases this is the proper Action, or some , 

other may be brought. i 

TF a man by obligation, acknowledges that he has received Roll. Abr. lie. 

money ad proficiendum et computandum, the obligee may either Dyer, 20. 1 is. 
sue the bond, or have an action o^ accompt at his election. ^^°' ^i'G44. 

So, \{ A. acknowledges by deed, that he has received 100/. Roll. R. 52. 
from B. to be adventured to the West Indies and thence to Eng- ^ ^u^st. 256. 
land back again, and covenants to render a true account thereof 
upon his return, though B. may have a writ of covenant upon 
this deed, yet he may also have a writ of accompt thereupon at 
his election. 

Assumpsit, in which the plaintiff declared, that intending to go 
beyond sea, he delivered a box full of goods to the defendant 
which he promised to dispose of, and to give the plaintiff an ac- 
count thereof at his return : the defendant pleaded in abatement, 
that he was bailiff to the plaintiff, to merchandize the said goods ; 
and that he ought to bring an action of accompt, and not an 
action on the case; and upon demurrer it was adjudged, that Salk. 9. pi. 1. 
here being an express promise, on which the action is founded, ve* k'"^ ^' 
assumpsit will lie as well as accompt -, and that wherever one acts Carth 89. 
as bailiff he promises to render an account. S. C. where it 

was holden, 
that the action would lie by three judges against HoH, who doubted, and who told the plaintiff, 
that when it came to be tried, he would not suffer him to give all the account in evidence, or 
to enter into the particulars thereof; but that he should direct his proof only as to the 
damages which he had sustained for not accounting according to the promise, for he would 
not travel into an account in such actions. Comberb. 149. S. C. 

In 



iC ACCOMPT. 

Salk, 9. pi. 2. In assumpsit for money received ad comjmtandum, and verdict 
Poulter V. fyr the plaintifT, it was moved in arrest of judgment, that this 
F^TaShow. J^ction tUd not lie, but accompt'; for if a man receives money to 
R. 301. a special purpose, as to account, or to merchandize, it is not to 

be demanded of the party as a duty, till he has neglected or re- 
fused to apply it according to the trust under which he received 
it; and the declaration must shew a misapplication or a breach 
of trust : but it was holden, that in this case the verdict had 
aided the declaration ; for it must be intended there was proof 
to the jury that the defendant refused to account, or had done 
somewhat else that rendered him an absolute debtor. 
Tonikins v. Iff ^e action of account is now seldom resorted to, and it is 

^^jl'''^'-'"'"' held that the balance of an account, however numerous the 
1 M^rsh 115 ^^^"'Sj ^^y ^6 recovered in assumpsit.^ 
Arnold V. Webb, 5 Taunt. 452.; sed vide Scott v. Mackintosh, 2 Camp. 238. contra. 

(E) What shall be a good Bar to this Action. 

RoU.Abr.i2i. T^ accompt against one as bailiff, it is a good plea that he was 

never his bailiff. 
Bro. 29. Roll. In accompt against a bailiff, it is a good plea that he was the 
Abr. 121. plaintiff's servant to drive his plough, and keep his cattle for the 
drawing of his plough, absque hoc that he was his bailiff in other 
manner, because he is not accountable for this occupation. 
11 Ah 193 ^' '^ ^ good plea in bar to an action of accompt^ that the 
So if the plaintiff hath released to him all actions. 

plaiiitifFhaJ released to him all the advantage and profit that he might have by the account. 
Roll. Abr. 125. 

Cro. Car. 116. go, it is a good plea in bar, that the plaintiff and defendant 
Hetl. 114. submitted to the award of J". S., who awarded that the defendant 

ought to be acquitted against the plaintiff. 
Bro. 48. Roll. So, it is a good plea in bar, that after the receipt of the sum 
Abr. 123. But of which the account is demanded, by the mediation of their 
the bare ac- friends, it was agreed between them, that the defendant should 
an'obligation make an obligation of 100/. for the 100/. received, and the profit 
would not be thence to arise, which obligation of 100/. he did make and 
sufficient. Vide deliver accordingly to the plaintiff; for the acceptance of the 
1 R l^t°"io3 obligation destroys the duty, and the sum in demand is thereby 

as strongly released as by a release of all actions. 
Roll. Abr. 123, It is no good plea in bar to the action, that the defendant hath 
124. So, if the made payment of the money which he hath received to account 
1 ^ds that the ^^^^'j or that he hath made satisfaction for the same, 
plaintiff" has given him an acquittance for the sum received. Bro. tit. Account, 59. For these 
pleas, being matters which shew that he was once accountable, are only to be made use of 
before the auditors. Vide Dyer, 22. 145. 6 Co. Ferrer's case. 4 Leon. 61. Stile, 55o. 410. 

49 E. 3. to. [Nonage is a good plea in bar of this action. So is pLaie com- 

4iE. 3. 5. 9. putavtt, and an account before the plaintiff would be sufficient. 
Lutw. 58. " ■f/<'"^ coviputavit and a release are the only pleas which admit 
3 Wils. 1 13, the plaintiff to be accountable that can be pleaded in bar to the 
action ; and these are allowed, because they are total extinctions 
of the right of action. This being a matter for the court to 

judge 



(F) Of tJie Auditors, and what shall he a good Discharge, ^x. 43 

judge of, they must be pleaded specially, and cannot be given in 
evidence on ne unqjie receivour. 

If the plaintiff charge the defendant as receiver for a particular Southcot v. 
time, he must ansv^rer that time precisely. . Rlvni' 57 

The defendant may plead the statute of limitations in this ac- St.21 Jac. 1. 
tion; but, if the plaintiff reply that it was an account between c. I6. §5. Firf. 
merchants, the plea will not avail him. Ch 518 

If the defendant plead that he has accounted before R. and W., Bui. Ni. Pri. 
evidence that he accounted before R. only will be sufficient, for 127. C4th edit.) 
the accounting is the substance.] , 

(F) Of the Auditors, and what shall be a good Dis- 
charge before them. 

TN an action of accompt there are two judgments; the first is Mod. 42. 

quod computet, after which the court assigns auditors, usually p ^"^' '^^' 
two of the officers of the court, who are armed with authority to l^J^ 49 
convene the parties before them de die in diem, at any day or Rast. 14, 
place that they shall appoint, till the account is determined. The Lutw. 50. Of 
time by which the account is to be settled, is prefixed by the auditors as- 
court; but, if the account be of a long and confused nature, the parses them- 
court, on application, will enlarge the time, [a) If either of the selves, by vir- 
parties think the auditors do him injustice, he may apply to the tue of the 
court; and if rhe defendant denies any article, or demurs to any statute vv. 2. 
demand, it is to be tried and determined in court. 2 Inst. sso. 

Brownl. 24. [Where the auditors are not assigned by the court, the remedy for not making 
such allowances to the accountant as they ought to do, is bj' writ o{ ex parte talis^ which is a 
commission to the treasurer and barons of the Exchequer to take the account. F. N. B. 129.] 
JlTwo principal officers of the Court of King's Bench were on motion appointed auditors after 
a judgment quod coviputet. Smith v. Smith, 2 Cliitt. R. 10. Archer v. Pritchard, 3 Dow. & 
Ry. 596. The rule to appoint auditors is absolute in the first instance, /ftjrf.ll [2 Inst. 38 r. 
(a) All articles of account, though incurred since the writ, shall be included, and the whole 
brought down to the time when the auditors make an end of their account ; per Ld. Mansfield 
2 Burr. 1086.] 

I Whatever may be pleaded to the action shall never be allowed Leon. 219. 
of as a good discharge before the auditors ; therefore, where in {^^^"s. 113. 
accompt the defendant pleaded never his receiver, &c. and this ^^ z,yo\d trou- 
being found against him, he was adjudged to account; and be- ble and charge 
fore the auditors he pleaded a submission of all debts, accounts, to the parties. 
^c. to J. S., who awarded that the defendant should pay 10/. j^^i^^^Jp^^' 
only in discharge of all debts, accounts, ^c. which he paid ac- Hg^i j {^ ' 
cordingly : this was holden no good plea ; for this award, made S. C] 
before the action brought, ought to have been pleaded in bar 
thereof; which being omitted, he hath lost the advantage thereof, 
and shall not plead it before auditors. 

[Nothing can be pleaded before auditors contrary to what has Godfrey v. 
been pleaded to the action, and been found by verdict: where, Saunders, 
therefore, a defendant charged as surviving bailifi'of goods de- ^ Wils. 114. 
livered to him and his co-bailifi'to be merchandised, and to ren- 
der an account, had gone to issue upon this fact, namely, whether 

upon 



44 ACCOMPT. 

upon his delivering over the goods to the deceased bailiff, all his 
(the defendant's) concern in the trust, care, and management 
thereof ceased and was at an end; which issue was found against 
him : it was holden, that he could not plead afterwards before 
auditors that he delivered the goods over to the co-bailiff with 
the consent of the plaintiff; for this matter might have been 
given in evidence upon the former issue ; and the consequence 
of admitting it to have been put in issue before auditors would 
have been, either two verdicts the same way, which would have 
been nugatory, or two contradictory verdicts, which would have 
entangled the court so much that they would not have known 
what judgment to give. 
41 E. 3. 25. The defendant may plead payment to the plaintiff without 

shewing an acquittance.] 
Roll. Abr. 124. It is a good discharge before auditors, for a factor to say, that 
Bro. ut. Ac- jj^ ^ tempest, because the ship was surcharged, the goods were 

cast over-board into the sea. 
^, J. So, it is a good discharge before auditors, that he was robbed 

(a) Or that he ^f the goods without his default or negligence. («) 
put them in a warehouse from whence they were taken by an enemy. Stra. 680. 
Roll. Abr. 124. ^' '^ ^ good discharge before auditors in accompt as a receiver 
(6) This must of 10/. if he tenders tlie 10/. {h) and swears that after the time 
be understood that the money was delivered him, he found that he durst not 

ofonewhore- X^^xy. for fear of loss ; for he is not obliged to run any hazard 
ceives money i- ir " ^ 

to trade and himself. 

merchandize therewith ; for no other receiver is in any case obliged to buy or sell. Roll. 
Abr. 124. Qiusre, Whether such oath be necessary; and vide 2 Mod. 101. 1 Bulst. 104. 
Eq. Ca. Abr. 369. 2 Vern. 638. 3 Wnis. 185. 187. 279. 10 Mod. 144. 12 Mod. 514, 602. 
[It seems that the defendant may, in some cases, purge himself by his own oath. The statute 
of 4 Ann. c. 16. $ 27. gives the auditors a power in the cases there providedfor, of administer- 
ing an oath, and examining the parties. Fitz. Abr. Accompt, p. 40. Bro. Accompt, p. 66. 
2 Mod. 101.] 

^oll. Abr. 125. If a bailiff of a manor receives the rents and profits of the 
tenants, and retains them two or three years, yet in a writ of 
accompt he is not to account for the profits thence arising in the 
mean time, for he had not any warrant to merchandize with the 
money, or to gain or lose thereby, 
a Mod. 100. If in accompt the defendant pleads before auditors, that the 

and the above goods for which he is to account were bona peritura ; and, not- 
(c) Nor pawn, withstanding his care in keeping them, were worse, and that they 
a Stra. 1187. remained in his hands for want of buyers, and were in danger 
(<f) Factors of growing worse, and that therefore he sold them upon credit 
now have fo a man beyond sea; this is no goo<l plea, for a factor cannot 
commission. ^^' even bona peritura upon credit (c), without a particular com- 
mission so to do. (rf) 
Bui. Ni. Pri. [The defendant cannot in an action of account pay money into 

court, as he may in an assumpsit. 
1 Lutw. 63. If the plea oi' plane compuiavit be found against the defendant, 

he shall account before the auditors for the whole money he is . 
charged with, for this plea admits the receipt of the whole. 

' ' ^ (G) Of 



ACCORD AND SATISFACTION. 45 

(G) Of the Judgment, and the subsequent Proceedings. 

TN this action, as is above mentioned, there are two judgments; i Brownl.24. 

the first is quod computet; and afterwards, when tlie account Cm. Eliz. 806. 
is finished, the second judgment is, that the defendant pay the ^ Black. Cora, 
plaintiff' so much as he is found in arrear. (a) Upon the first (a) \vhere 
judgment a capias ad computandum Hes, and if a non est inveritus final jiid<>;ment 
be returned upon it, an exigent issues. It is usual to bail the ^^^"^ entered in 
defendant, if he be taken on the capias^ though, by the rigour of ^["^ "•"'^'^ '"" 
the law, he is to account in prison. c'ourt'set it 

aside upon motion, as irregular. Hughes v. Burgess, Jff. /?. H. 594. Andr. 19. S. C. 

If the defendant make default after the interlocutory judgment, Cro. Eliz. 806. 
at the day assigned by the auditors, final judgment shall be s Wils. ii7. 
entered for the sum demanded by the plaintiff. So, if there be ^ • ^'\" '''^' 
judgment on demurrer to an insufficient plea before the auditors, ^i E. 3. 87. * 

2R. A. 131. p. 4. 

It seems to be questionable, whether, in all cases, damages are Jenk. 288. 

recoverable in account ; but it is clear that if the defendant resists * y^ ' "'"' 

the plaintiff^s claim by pleading, or an increase is received by j Leo. 502. 

a receiver, ad merchandizandum^ there shall be judgment for 2Leo.11 8. 

damages. 3 Wils. 117. 

It hath been holden, that the first judgment is not such as can 21 E..5. 9. Z2. 
be revived by scire facias upon the death of the plaintiff, before ^i- ^.^s- li- 
the account taken (6), or as a writ of error can be brought upon ; u^ ^'^ q-" 
and yet the plaintiff cannot be nonsuited after it. 

After final judgment, the plaintiff' may pray that the defendant's Lutw. 51. 
body be taken in execution ; or he may pray an elegit, if he 
refuses the body. See the writ to the gaoler to receive the 
defendant after final judgment. Reg. 137.] 



ACCORD AND SATISFACTION. 



A CCORD is an agreement between two persons at least to give 5 E. 4. 7. 

and accept something in satisfaction of a trespass, Sfc. done j^^j]^"^'^*^ j^g 
by one to the other. This agreement, when executed, may be 
pleaded in bar to an action for the trespass; for in all personal 
injuries, the law gives damages as an equivalent ; and when the 
party accepts of an equivalent, there is no injury or cause of com- 
plaint, and therefore present satisfaction is a good plea : but, if 
the wrong-doer only promise a future satisfaction, the injury con- 
tinues till satisfaction is actually made, and, consequently, there 
is a cause of complaint in being; and if the trespass were barred 
by this plea, the plaintiff could have no remedy for the future 
satisfaction, for that supposes the injury to have continuance.. 

(A) What 



4§ 



ACCORD AND SATISFACTION. 

(A) What shall be deemed a good Accord and Satis- 

faction. 

(B) To what Actions may Accord and Satisfaction be 

pleaded. 

(C) Of the Form and Manner of pleading Accords. 



^ 



(A) What shall 



be deemed a 
Satisfaction. 



good Accord and 



9E. 4. 19. 

Roll.Abr. 128. 
[(a) Vide 
Perk. $ 749. 
Dy. 75, In 
the case of 



A N accord must appear to be advantageous to the party (a), 

otherwise it can be no satisfaction ; therefore in an action of 

trespass for taking the })laintifF's cattle, it is no good plea to say, 

that there was an accord that the plaintiff' should have his cattle 

again ; for this is not any satisfaction. 

Cumber V. Wane, Stra. 4'J6. it was said by the court, that the satisfaction must appear to them 
to be a reasonable one; at least, that the contrary must not a[)pear ; that consequently, pay- 
ment of a less suin could never be admitted as an accord and satisfaction for a greater.] JlSo 
Pinnel's case, 5 Co. 117.; and Fitch v. Sutton, 5 East, 2.'5l.|] But, if it was to drive 
them to a certain place, so that it would be a charge to him to do it, this would make it a 
good accord. 2 Roll. R. 96. In covenant against the executor of tenant for life, Sec. he 
pleads an acccord that he should quietly depart, and leave the possession, &c. and holden 
good ; though after the death of tenant for life he had no interest, but a licence in law only 
to carry away his goods. Yelv. 124. per three judges against one. 

Pinnel's case, ||Though the acceptance of a less sum is not alone a good ac- 
1 17 C b cord and satisfaction of a greater, since there is no consideration 
for giving up the rest of the debt, (it makes no difference that there 
is a promise by the debtor to pay the residue when able) yet 
certain other additional advantages moving to the creditor, have 
been held to render the agreement on his part to accept the less 
sum bindinu. 



V. Wane, 
Stra. 426. 
Fitch V. Sut- 
ton, 5 East, 
231.; and see 
2 Bam. & C. 
477. 

Steinman v. 
Magnus, 
1 1 East, 390 



Thus, where the debtor entered into an agreement (not sealed) 
with his creditors, whereby they agreed to receive 20L per cent, 
in satisfaction of their several demands, and released the re- 
Lewis V.Jones, mainder in consideration that half the sum should be seaired by the 
acceptances of a certain other person also a creditor, which 
security was accordingly given and paid when due ; it was held 
that such agreement was binding on the plaintiff*, one of the 
creditors. Here the security given by the surety for half the com- 
position was a beneficial consideration moving to the plaintiff" and 
all the creditors, and as the surety was only induced to give it 
on the faith of the defendant being discharged from the remainder 
of the debts, the court considered it a fraud upon the surety, as 
well as on the other creditors, that the plaintiff' should sue for the 
residue of the debt. 

So, although a mere agreement between the debtor and his 
creditors that they will accept a composition in satisfaction of 
their respective debts, is not a good accord and satisfaction 
pleadable to an action brought by one of the creditors, to recover 

his 



4 Barn. & C 
513.; and see 
Boothbay v. 
Sowden, 
3 Camp. 1 74. 
Cork v. Saun- 
ders, 1 Barn. 
& A. 46. 



Heathcote v. 
Cruickshanks, 
2 Term R. 24. 
and see 2 H. 
Black. 317. 



<^<? 









.Jt >v " AA*****^***-^" 



(A) What shall be deemed a good Accord and Satisfaction. 47 



his whole demand, yet it seems that if the debt be ascertained by 2 Term R. 24. 

the agreement and a fund provided, and all the creditors are ^"ll^^^ 

bound to forbear, the agreement constitutes a good plea. So, "^ '""^' 
also, (it seems) if the debtor assign over all his effects to a trustee 
for equal distribution among his creditors, for this is a good con- 
sideration for the promise of each not to sue. 

And if all the creditors verbally agree to accept a composition, Bradley v. 

partly to be secured by acceptances of a third party, and partly Gregory, 

by the debtor's own notes, and to execute a deed with a clause ^ ^^^'"p. 383. 

of release, and if all the creditors but one sign the deed, and the q"^ ^^^^ ^^' 

acceptances and notes are duly tendered to such one creditor, q i erm R, 

and he then refuses to receive the bills or to execute the deed, 263. 
it has been held he cannot sue the debtor for his original debt. 
Lord Elleiiboroiigh held that the agreement was executed by the 
signing of the other creditors, and the tender of the bills, and 
that it was a good accord and satisfaction. 

It has been held a good plea in assumpsit for goods sold, cSr. Kearslake 

that the defendant, being payee of a promissory note, indorsed it ^' Morgan, 
to the plaintiff, "for and on account of" the said debt. But if ^^^ Thomas 

the demand exceeds the amount of the note, it can only be v. Heathorn, 

pleaded as to so much of the demand as is covered by the amount 2 Barn. & C. 

of the note. II '*^^- 

An accord that each of the parties should be quit of actions 

against the other, is not good («) ; because it is not any satis- g°, ' 045^^^' 

faction.. Lut%7. 
IJJames v. David, 5 Term R. M.jj (a) But an accord that each should give the other a quart 
of wine in satisfaction of action, is good. Roll. Abr. 128. 

In an action upon the statute of 5 Rich. 2. st. 1. c. 8. if the 9 E. 4. 19. 

defendant saith, that after the entry an accord vans made between Roll. Abr. 128. 

them, that the plaintiff should re-enter into the land, and that ^94'!'^^^''^* 

the defendant should deliver the evidences of the plaintiff to the citeA Dyer, 

plaintiff, this is not any bar of the action ; for the delivery of the o56. S. C. 

plaintiff's own evidences can be no satisfaction of the tortious ^i^ed, {b) But, 

entry, (b) ''[ '?« •»'^\^'^ 

•^ ^ ' title to the 

evidence, it would be a good bar. Roll. Abr. 128. That the delivery of the deed by the 

feoffee to cestui que use is a good accord, because it belongs to the feoffee. Cro. Eliz. 357. 

An accord that the defendant should endeavour to make up and Roll. Abr. 128. 
adjust differences between the plaintiff and J. 5., thai he did 
endeavour, and at his own costs make up such differences, is a 
good plea. 

In trespass for trampling his grass, the defendant pleads that Bro. Trcs()ass, 
he was amerced in the court-baron of the plaintiff' for the same <56. 
trespass, which was affeered to two shillings, for which he hath 
agreed with the plaintiff; and holden a good plea by the accept- 
ance thereof, though the amercement in the court-baron was 
extortion. 

In an action upon the case for scandalous words, the defendant Roll. Abr. 128, 
pleads, that after the words spoken, the plaintiff sued the de- ^^9. 
fendant in the military court before the lord marshal ; where it 
was ordered by that court, with the consent of the plaintiff and 
defendant, in discliarge of this suit, and all other differences 

between 



48 



ACCORD AND SATISFACTION. 



cause it ap' 
peared that 
the first obli- 
gation was 
forfeited, and 
then the pe- 



(a) Where the between them, that the defendant should make a submission in 

defendant writing, in a place appointed, and before certain persons, Si-c. and 

Ft was^ agreed ♦'v^'"'* ^'^'^^ he did so accordingly, t^c. and on demurrer it was 

the defendant holden no good plea : for it being a point of honour only (a), 

should confess could be no discharge of the damages. 

to the phiintiff 

he had done him wrong, and should ask forgiveness on his knees, whether this was a sufficient 

consideration or satisfaction. 2 Roll. Rep. 96. dubitattir. Vide Stile, 245. Salk. 71. pi. 5. ijnd 

head of Arbitrament and Award. 

s Lev. 55, 56. Debt upon an obligation dated the twenty-third of March, 

Lobly and 24, Car. 2. upon condition to pay 10/., the defendant pleaded an 
Gildart. Hob. » 1 1 c- ^ -i ,., V^ ^ i i • 11 

68. Lovelace occo7a the last or Aprils 31 Car. 2. whereby it was agreed that 

V. Cocket. A. the defendant should give the plaintiff a new security for this 

new obligation debt, and for another due to him by obligation likewise ; and be 

was given; and ^einff the executor of the obligor, and the person with whom this 

holden no sa- »- , <? ' r 

tisfaction be- o.ccord was made, gave security, pursuant to tlie accord, by a 

bill sealed by himself; the plaintiff demurred ; and by the whole 
court judgment was given for the plaintiff; for one obligation 
given in satisfaction for another is no discharge, whether 
grounded upon an accord or not; for the concord does not 
mend the matter; and yet here the new obligation binds him de 
nalty was the bonis jn-opriis, whereas the first obligation bound him only dc 
therVfo'rethe ^onis lestatoris, 

second being for less, could not be a satisfaction for a greater sum. Lutw. 466. Vide 5 Co. 
117. Cro. Eliz. 727. 4 Mod. 88. 7 Mod. 17. [One simple contract debt cannot be pleaded 
in bar of another. Roades v. Barnes, Burr. 9. Black. R. 65. If a debt is on deed or obliga- 
tion without condition, the accord and satisfaction must be by deed, and so pleaded.] USee 
7 East, 148. II [If there appears a condition for payraentof money, perhaps, it may be pleaded 
without deed in satisfaction of the money or condition. 2 Wils. 86.] 

Preston v. ^^ release of an equity of redemption is no satisfaction, because 

Christmas, of no value in the eye of the law."] 

2 Wils. 86. Qu. of this, and whether courts of law do not look at mortgages now with the 
same eyes as the rest of the world ? 

Scholey v. || Xhe satisfaction must be to the party having the legal interest 

7 East 148 ^^ ^^^ debt, and must be so pleaded. Thus, where the sheriff 
declared against defendant on a bail-bond, and the defendant 
pleaded that the action was brought by the sheriff, as trustee for 
the sheriff^s officer, and that the defendant paid the officer the 
debt and costs in the action after the return day, but before the 
sheriff was ruled to return the writ, and the officer accepted the 
money in full satisfaction and discharge of the bail-bond and fees, 
and that if any damage were afterwards incurred for default of 
defendant's appearance, it was occasioned by the officer not pay- 
ing over the debt and costs to the plaintiff in the action, who 
would have accepted the same, Sj-c, the plea was held bad on 
demurrer; for it did not appear that the officer had any legal or 
equitable interest (even supposing the latter would have sufficed) 
in the bond, at the time of the supposed satisfaction recovered by 
such officer. II 

If an accord be to do two things, and the defendant do one and 
w.^ ...uo "°^ ^'^^ other, this is no bar of the action, because the plaintiff 

executed, vide ^^^^ "^t any remedy for that which is not performed. 

tupra and Plow. 5. 11. b. 9 Co. 79. b. 2 Jones, 158. 168. 2 Keb. 332. Salk. 76. T. Raym. 

450. where 



Roll. Abr. 129 
That the ac- 
cord must be 



(A) What shall be deemed a good Accord and SatkfcKtioiu 49 

450. where it is said, that an accord may be pleaded without execution, as well as an afWtra- 
inent ; but quare, and see Allen v. Harris, Ld. Raym. 122. Lutw. 1537. S. C. James v. 
David, 5 Term R. if. J2. 141.] ||Lynn v. Bruce, 2 H. Bl. 317. Bradley v. Gregory, 2 Camp. 
383. from which cases it is clear the accord must be executed. The contrary doctrine would 
" overthrow all the books," according to the language of the court in Ld. Raym. 122.j| 

But, if an accoid be that the defendant shall do a certain thing 6 H. 7. ii. b. 
at a day to come, in satisfaction of an action; if he perform it at ^° •^^•^^^' 
tiie day, this is a good bar of the action, thongh it was executory ^ss.W 
at the time of the accord made, inasmuch as he hath accepted it 
in satisfaction. 

If in trespass the defendant pleads a concord between himself Raym. 203. 
and the plaintiff, that he should pay the plaintiff Si. in hand, ^^^^ ^"/^ 
and should undertake to pay the plaintiff's attorney's bill, and 2 Keb 690*^ 
avers that he had paid 31. and was always ready to pay the at- s. C- 
ton>ey's bill, but he never shewed him any ; this is no good 
plea, because the accord is not shewn to be fully executed. 

f So, performance of part, and tender of performance of the Lewis v. Shep- 
resid Lie, is no good plea. Jones ^6^^' 

Where to debt upon bond the defendant pleaded payment of Balston v. 
part before the day on which the bond became due, and a pro- Baxter, Cro. 
viise to pay the rent at a day to come, to which the obligee had , \ aH^* 
agreed ; the court held it no bar, it being executory. For the Harris, Ld.' 
same reason a plea to an action of trover that the plaintiff Raym. 122. 
agreed to discharge the defendant of the trover in consideration ^"^* ^^*'^- 
■Tiis undertaking to pay a sum of money, was holden bad (a) ,^. james v 
So, a plea that the plaintiff and defendant agreed to settle all David, sTerm 
matters in dispute, and to bind themselves in a penalty not to R. Hi. 
sue each other, [b) 

So, where a defendant pleaded that his several creditors, one Heathcote v. 
of whom was the plaintiff, had come to an agreement to accept Crookshauks, 
a composition in satisfaction of their respective debts, to be paid np "^fi \f^' 
within a reasonable time, which he tendered and was ready to caggs 0^ this 
pay ; it was holden that this was no plea to the action for the subject see 
whole demand ; for the agreement is unexecuted, and the pro- '*'^^*^- P- ^^-ll 
mise a mere nudum pactum for want of a consideration. But 
per Buller J. — If the defendant had assigned over all his effects 
to a trustee in order to make an equal distribution among all his 
creditors, and they had been bound by the agreement to forbear, 
it might have been a good plea.] 

If in an indebitatus assumpsit y Sfc. the defendant pleads an Raym. 450. 
agreement between the plaintiff and defendant, and J". aS. the son 2 Jones, 158. 
of the defendant, that the plaintiff should deliver to the defend- ^^^ ^^^^ 
ant certain clothes, which the plaintiff then had in his custody ; Barber, 
and that the plaintiff should accept the said son her debtor for 91. 
to be paid so soon as he received certain pay from the king, due 
to him as lieutenant of a certain ship, hi full satisfaction, S^c. and 
that after, so soon as the son received his said pay, he was ready 
and offered to pay, <§r. and that he yet is ready ; this is no good 
plea, for it doth not appear that there was any good consider- (r) Vide 
ation why the son should pay, but a bare agreement, without con- 2 Jones, I68. 
sideration (c) ; and admit the promise good, if not in writing, by ^ *'*• , 

Vol. I. E 29 Car. '^^'■'''^'- 



so ACCORD AND SATISFACTION. 

29 Car. 2. c. 3. no action lies thereupon ; and therefore it 
ought to have been shewn that it was in writing ; for when such 
agreement is pleaded in bar, it must appear to the court, that 
an action will lie thereupon ; for the defendant shall not take 
away the j)lainti{I''s present action, and not give him another 
' upon agreement pleaded. 

5 Lev. 189. If in covenant to permit the plaintiff to receive 100/. per ann. 

Russell and j.^^^^^ jj^^ Jefendant pleads a concord between the plaintiff and 
"*^ ' defendant, that each of them should deliver his part of the in- 

denture into the hands of a third person, to be cancelled, and 
that each of them should be discharged of all actions upon the 
indenture, and avers that he had delivered his part to the third 
person ; yet this is no good plea, because it does not appear 
to be executed on both parts. Sed, qu. the default being the 
plaintiffs. 

Per Heath J. || Where a man by deed acknowledges himself to be satisfied, 

* Taunt. 145. jj. jg ^ good bar without receiving any thing. || 

(B) To what Actions may Accord with Satisfaction 

be pleaded. 

4 Co. 1. A ^ accord with satisfaction is no good plea to an action 

9 Co. 79. b. •**■ j-eal (a) ; for a right or title to a freehold cannot be barred 
detinue.'for ^V ^"7 collateral satisfaction. 

charters concerning a freehold and inheritance, an accord is a good plea. 7 E.4.33. 9 Co. 78. 
So, in waste against a lessee for years, though in the tenet, an accord is a good plea, because 
a chattel only is to be recovered. N. Bendl. 35. Mo. 6. 9 Co. 78. But 6 Co. 44. contr. 
So, in ravishment de gard, and quare ejecit infra termimim. 9 Co. 78. An accord with satis- 
faction is a good plea in an ejectione firmce ; for an ejectment includes a trespass, and they 
are so interwoven that they cannot be severed ; and in all actions which suppose a wrong 
vi et armis, where a capias and exigent lay at common law, there an accord is a good plea. 
9 Co. 77. Brownl. 134. S. C. 2 Brownl. 128. S. C Godb. 149. ||It seems that satisfac- 
tion by one tort-feasor discharges the others, 3 Taunt. 1 1 7.|| In an appeal of mat/hem an 
accord with satisfaction is a good plea; notwithstanding the writ be felonice. 6 Co. 44. 
9 Co. 78. So, in attaint, 13 E. 4. 1. 6 Co. 44. Cro. 357. Dyer, 75. If an accord be a 
good plea in a qiuire impedit, — qiuere ; and vide 1 1 H. 7. 13. b. 6 Co. 44. a. 2 Brownl. 128, 
139. Brownl. 124. 

Q ^, When a duty in certain accrues by the deed tempore coitfec- 

Lutw. 358. tionis scriptif as by covenant, bill, or obligation, to pay a certain 
S. P. Cro. Jac. sum of money ; this certain duty takes its essence originally 
^^*n*R* ^"^ °"'y ^y writing, and therefore ought to be avoided by 
187.° IJSee niatter of as high a nature, though the duty be merely in the 
Sch'oley v. personalty. 
Meams, 7 East, i48.|| 

Kaye v. Wag- ||And therefore accord and satisfaction, made beforehvesich of 
423"' Lowe*' ^ covenant under se'^f, cannot be pleaded in bar of an action 
T. E<"nnton, on the covenant. || 
f Price, 604.; and see Drake v. Mitchell, 3 East, 251. 

AH "-9^^?: ^"'' ^^ ^^ covenant against an assignee a breach is assigned, 

Jac. 304. Co. *" "°^ repairing the house, the defendant may plead an accord 
Entr. 117. between himself and the plaintiff, and execution thereof, m 
Yeiv. 185". satisfactiotie et exoneratioiie reparationum i^rad.} for no certain 

duty 



(C) Of tJie Form a?id Manner of pleading Accords. 5 1 

duty accrued by the deed, but the action is founded upon a tort Noy, i lo. 

or default subsequent, together with the deed, and damaojes only ^Ji?' ^^^' ^°P; 
* t ] I • u • *i, u Wing.Max.64. 

to be recovered, which are m the personalty. 9 Co? 79, b. 

An accord with satisfaction generally is a good plea in all g q^ ^^ 
actions where damages only are to be recovered. Dyer, 75. 

II To a scire facias on a bond to the crown a plea of payment Rex v. Ellis, 
after the day, and before the writ issued, and acceptance by the 1 Price R. 
crown in satisfaction, is not sufficient. |j ^^' 

(C) Of the Form and Manner of pleading Accords. 

^HE best and safest way to plead an accord is to plead it by 9 Co. so. 

way of satisfaction^ and not by way of accord ; for if it is Vide Roll, 
pleaded by way o^ accord, a precise execution thereof, in every ^^''- ^^^* 
part, must be pleaded ; and if there be a failure in any part, the 241 gtra 57J 
plea is insufficient ; but if it is pleaded by way of satisfaction, the 
defendant need plead no more, but that he paid the plaintiff 105. 
in full satisfaction for the action, which he received. 

If in covenant, by the heir of the reversioner against the exe- Yelv. 124, 
cutor of tenant for life, for not repairing, S^x. the defendant ^^^* ^' 
pleads that the testator died 19th March, and that the 2'id March f^j.^ ^^^ 
concordat, et agreat. fuit between the plaintiff and defendant, CutclifF; 
that the defendant should quietly depart and leave the posses- adjudged by 
sion to the plaintiff, and that i7i consider atione inde the plaintiff j^^^J^^'^^" ^"'1 
did agree to discharge him of the breach i?i 7ion reparando, and j^ynnalns said 
shews that the 25th March he did depart, 4"^. this is no good plea, the time being 
because the concord is uncertain as to the time of his departure ; indefinite, the 
and though he shews a departure within five days, yet he cannot ^^w*^!^'^\ 
help the original insufficiency of the concord, which is the found- i,ggjj imme- 
ation of all. diatelv. Noy, 

110. S.C. cited. 

In an assumpsit for wares sold and delivered, the defendant Young v. 
pleaded that he gave and delivered unto the plaintiff .a beaver p .v* 
hat in satisfaction and discharge, 8^c. and that the plaintiff 5 y[Q^^ 86.' 
accepted the said hat in full satisfaction and discharge of the S. C. 
promises, 8^c. The plaintiff replied j9ro/cs/aw^o that the defend- 2 Salk.627. 
ant never gave him any such hat in satisfaction and discharge of P . ^p , 
the said promises, pro placito dicit, that he never accepted a s.C. 
beaver hat in satisfaction and discharge, Sfc. On demurrer it 
was insisted first, that the issue ought to be upon the giving in 
satisfaction, and not upon the receiving in satisfaction, because 
every gift or payment must be directed by him who gives or 
pays, and not by him who receives it [a) ; but the Court held it («) Stra. 23. 
well enough, and that the whole matter concerning the pay- ^'^'** 
ment, as well as the acceptance in satisfaction, would be tried 
upon this issue ; as to the objection of its being pleaded to be 
given in satisfaction and discharge of the promises, S,'c. when it 
should be pleaded in satisfaction of the money mentioned in the 
promises, and not of the very promises, the court held it of no 
weight. 

E 2 [It 



52 



ACTIONS IN GENERAL. 



Hawksliaw 
V. Rawlings, 
Stra. 23. 
Paine v. 
Masters, 
Jbid. 573. 
Francis v. 
Oywell, 
5 iJarn. 6i A. 
886. 



Hopkinson v. 
Tahourdin, 
S Chitt. R. 
303. ; and see 
id. 324. 

1 Ld. Raym. 
666. 4 Esp. 
Ca. 181. 



[It liath been since settled that this is the proper method of 
pleading : for there are two requisites to a discharge, namely, 
payment, and acceptance ; and a traverse of the acceptance is an 
argumentative denial of the payment.] 

II Where the plaintiff declared for tythes bargained and sold, 
and the defendant pleaded that before the exhibiting of the 
plaintiff's bill the defendant paid, and the plaintiff accepted, 
a sum of money in discharge and satisfaction of the promises in 
the declaration, and the plaintiff replied a latitat sued out before 
such payment : on demurrer judgment was given against the 
plea; because it appeared by the replication that the plaintiff 
had sustained damages and costs by reason of the nonperform- 
ance of the promises, and the plea did not allege the payment 
to have been in discharge of such damages and costs. 

Where in assumpsit on several promises the defendant pleaded 
accord and satisfaction of the cause of action, the plea was held 
bad on special demurrer, since it did not go to the whole declar- 
ation. 

Accord and satisfaction may be given in evidence on the 
general issue, and it is not very frequently pleaded. l| 



ACTIONS IN GENERAL. 



nPHE design of entering into society being the protection of 

our persons and security of our property, men in civil 

society have a right, and indeed are obliged to apply to the 

{a) Actio nihil public for redress when they are injured ; for were they allowed 

• " ,!o*^5"'"" ^° ^^ their own carvers, or to make reprisals, which they might 

quendi in ^^ i'^ the state of nature, such permission would introduce all 

that inconvenience which the state of nature did endure, and 

which government was formed to prevent : hence, therefore, 

they are obliged to submit to the public the measure of their 

damages, and to have recourse to the law and the courts of 

justice, which are appointed to give them redress and ease in 

their affairs ; and this application is what we call bringing an 

action, (a) 

recovery of, or restitution to something, Co. Lit. 289. and differs from a writ of error , | 
which is no action, but only a commission to the judges to examine the record, Sfc. \ 
Jenk. 25. 2 Inst. 40. Yelv. 209. Yet, if by writ of error the plaintiff therein may recover, 
or be restored to, any thing, it may be released by the name of an action. Co. Lit. 288. b. 
V'ule for this 2R0II. Abr. 405. The suit till judgment is properly called an action, but not 
after; and therefore a release of all actions is regularly no bar of an execution. Co. Lit. 289. a. 
Roll. Abr. 291. 



Under 



judicio quod 
sibi debetur. 
Co. Lit. 285. 
or a legal 
demand of 
one's right. 
Co. Lit. 285. 
a Inst. 40. 
It implies a 



(A) Of tJie different Kinds of Actions. 18 

Under this head we shall briefly take notice, 

(A) Of the different Kinds of Actions. 

(B) In what Cases an Action will lie, and for whom, 

and against whom. 

(C) In what Cases distinct Things may be laid in the 

same Action. 



(A) Of the different Kinds of Actions. 
A CTIONS are divided into criminal and civil. Co. Lit, 284w 






2 Inst. 40. 



Criminal are either to have judgment of death, as appeals of 2 Wooddes. 
death, robbery, 8^c.\ or only to have judgment of damages to ^s'^* 
the party, fine to the king and imprisonment, as appeals of 
mayhem, &c. 

Civil actions are again divided into real, personal, and mixed. Co. Lit. 284. 

2 Inst, 40. 

And here it may be proper to enquire a little into the nature 
of those real actions which were formerly in use, and how they 
came to be discontinued. 

Actions real, or relating unto lands, are either droihiral, that [This is not 
is, of the right of the ancestor ; or possessory, which complain the true dis. 

of the violation of a right of which the parties themselves were tinction be- 
^ ° tween droi- 

possessed. turaUnd 

possessory actions. Whether the action be droitural or possessory depends not upon whether 
it complain of an injury to the demandant himself or to his ancestor, but, whether it seek to 
recover the property or the possession. If the former, the action is droitural ; if the latter 
it is possessory. Finch has stated this correctly. " Real actions," says he, " where a free- 
*' hold shall be recovered, are possessory., or in the right. Possessory, which are to recover 
" a possession, as all assizes, writs of ayel, besayel, and cosinage. In the right, which 
'* are to recover a possession mixed with the right. And both these may either be of a posses- 
" sion or right in himself, or descended from his ancestors, which we call ancestral. Real 
" actions in the right, are either founded on the right, or for the mere rigiit." Finch's Law, 
257, 258. Note — The part referred to in the first Institute in support of the doctrine of the 
text, vix. 1 Inst. 164. is not at all referable to it, nor is the editor aware, that it is warranted 
by any passage in that book,] ||See Black, Com. b. 3. c. 10.|1 

ITie law always distinguished between a right of entry and a Booth, 99. 
naked right to the land itself; and therefore there were different ^o- Ent. 182. 
remedies. To recover the naked right, the law gave only a writ * * ' 
of right; and in this action, the defendant at his election might 
put himself upon his country or wage battle. But, when the 
disseisee had a right of entry, it was presumed that the disseisin 
was fresh and recent ; and therefore the trial was coram paribus 
airtis. But, if the disseisee did not come till the heir was 
seated in the possession, and had paid relief to the lord, then the 
entry of the disseisee was taken away, and his title became 
doubtful ; and then they appealed to Providence in such deci- 
sions ; and if any freemen would, with his own body, defend the 

E 3 ' title 



S4> 



ACTIONS IN GENERAL. 



Booth, 177. 

179. 

||See Roscoe 

on Ileal Ac- 

tions.ll 



Booth, 175. 
S Inst. 289. 



F.N. B. 191. 

Booth, 175. 
e Inst. 153. 
B Black. Com. 
C. 10. 181. 



F.N.B.191. 

221. 

Booth, 175, 
176. 200. 
3 Black. Com. 
185. 



Glanv. c. 7. 

§17. 

Fleta, 214, 

215. 

Vide Assize. 



So the writ of 
jQuod ei dcfor- 
c£?af which was 
given by a sta- 
tute passed in 

F. N. B. 220. 
Vide head of 
Ejectment, 
3 Black. Com, 
«. 11. SCO. 



title of the possessor, tlie demandant was obliged to find a cham- 
pion to enter the lists with him. 

But to recover the right of possession, the ancient way was 
by writ of entry. Where the process was by summons grand 
cape before appearance, and petit cape afterwards, as in the writ 
of right, and the general issue was disseisivit vel non disseisivit; 
and this issue was tried by a jury, because when the disseisin was 
fresh, they did not put it upon the hazard of a battle, as they 
did in those cases where the long possession had made the right 
doubtful. 

But in the writ of entry they recovered no'damages ; for that 
such writ only demanded the freehold, and was not mixed with 
the personalty ; and therefore to recover the profits which are 
merely personal, they had an action of trespass, which was the 
proper remedy for the damages sustained, 

There were anciently only three sorts of writs o^ entry ; one was 
against the disseisor himself; the other was against his feoffee, 
which was called the 'writ of entry in the per; the third was after 
a second alienation, which was called a *writ of entry in the pei' 
and cui; but the statute of Marlb. cap. 30. gave a writ of entry 
in the post, which did not lie at common law against an alienee 
at a third hand. 

And as a man might have brought such writ of entiy of his 
own disseisin, so' he might have brought it for the disseisin of his 
father, or he might have brought it for a disseisin done to his 
grandfather, which was called a writ of ayel, or a disseisin done 
to his great-grandfather, which was called a writ of hesayel, or 
any collateral cousins, that were more remote that brothers and 
sisters, uncles and aunts, nephews or nieces ; and this was called 
a writ of cosinage. 

But because the process in a writ of entiy became tedious, 
when such actions were removed out of the lord's court into that 
of the king, and thereby the process w'hich issued from three 
weeks to three weeks in the lord's court, was depending so many 
several terms in the king's court, therefore the assize was in- 
vented, which was in the nature of a commission to put the 
disseisee in possession by trial at one assizes ; and this was so 
sudden and immediate a remedy, that the writ of entry became 
obsolete; and therefore when the assize was the usual remedy, 
the writ of entry began to be called a inTit of entiy in the nature 
of an assize. 

There were likewise other remedies, as the formedoti in re- 
mainder and reverter, and a formedon in descender, which were 
given by the statute de donis, which created estates-tail. 

the same year with the statute de donis, vis, 13 E. I. c. 4. and occasioned by it. 

But the proceedings of these real actions being dilatory and 
expensive, and in many cases concluding the party upon one 
trial, a more commodious method was contrived to dispute the 
title to lands, which began in the reign of Hemy the Seventh in 
this manner ; by forming a term for years, and then the lessees 

bring- 



(A) Of the different Kinds of Actions, 5^ 

bringing an ejectment to recover the term, and thereby to assert 
the title of the lessor of the plaintiff: before this time, if a termor 
for years, who only claimed as a bailiff to the freeholder, had 
been ousted of his possession, he had only a remedy to recover 
damages in ejectment, and could not recover the term itself (a); 
but in the reign of Heni-y the Seventh, the courts of equity having Jenk.Cent. 
obliged such wrong-doer to a specific restitution, the courts of law p- 67. See 
likewise gave an habere facias possessionem to recover the term i7i ^n^^^?\ *" 
specie. {a)1\e term 

itself was recoverable only by covenant against the lessor. Fitz. Eject. 2 P 6. R. 2. F. N. B. 
145. M. So early as the reign of Edivard the Fourth it was said by Fairfax in argument, that 
the plaintiff in ejections firmcB should recover possession of his term, as he would in a 
quare ejecit infra, ierminiim. 7 E. 4. 6. b. 

Personal actions are ex contractu, or those founded on con- 
tract, as debt, which is to recover the thing in mimero; or detinue, 
which is to recover the same in specie; or (if it cannot be had) its 
value, and also damages for the detention; and actions of acctw^w^, 
covenant, assjwipsit, guatiium ?neruit, quantum valebat, and annuity. 

Or ex delicto, as trespasses founded on force, which are tres- ||(*) There are 

passes vi et armis; or upon fraud, which are actions upon the "i^"y actions 

n\ L ^ ^ on the case 

<^ase.(6) ^ which are not 

founded on frmtd, as actions for injuries to incorporeal hereditaments and rights, for injuries 
to reputation by libel and slander, for injuries arising from negligent acts of the defendant 
himself and of his servants, and for various breaches of legal duty. See further, as to the dis- 
tinction between actions of trespass, and trespass on the case, tit. Trespass {A), YoLYll.i 
and see next page.j| 

Therefore if a man gets the goods or chattels of another by 
lawful means, as by bailment, borrowing, or pledging, he cannot 
have an action of trespass, but must bring detinue or trove?; be- 
cause the party had not violated his possession. 

So, where a man comes to buy goods, and they agree upon a 
price and a day for the payment, and the buyer takes them away, 
trover does not lie, but an assumpsit for the money, because the 
property was changed by a lawful bargain. 

If I borrow a horse to go to Dover, and go to other places, the Roll. Rep. its. 
owner may have an action on the case against me, for exceeding 
the purposes of the loan : for so far it is a secret and fallacious 
abuse of his property ; but no general action o( trespass, because 
it is not an open and violent invasion of it. 

Where the act is lawful (c), as the fixing of a spout, and 8 Mod. 272. 
the consequence is injurious, the remedy is by case, and not 2Ld. Raym. 
trespass. 1399. Forteso. 

* 212. 1 btra. 

634. 11(c) The lawfulness or unlawfulness of the act is not the criterion between the action 
of trespass and on the case. Sec 2 Black. R. 894. 3 Wils. 499. Scott v. Shepherd ; where 
instances are put by Blackstonc J. in which trespass lies for the consequences of a lawful act, 
and where case may be brought for the consequences of an unlawful one. The distinction is 
between direct or immediate injuries on the one hand, and mediate or consequential injuries on 
the other. Trespass never lay for the latter. Ibid. And eee tit. Trespass (A), Vol. Vll.; and 
the cases there. || 



E 4 (B) In 



56 ACTIONS IN GENERAL 

(B) In what Cases an Action will lie, and for whom, 
and against whom. 

TT is clear, that for all injuries done to a man's person, repu- 
tation, or property, he shall have an action, and that for 
every right he is to have a remedy ; for want of right and wanfe. 
of remedy are the same thing. * 

Co.Litt. 145. It is also agreed, that where a person has several remedies, he. 
Stile, 4. jf^jjy choose which he pleases; but he cannot devise or lay hold 

on any but those prescribed by the laws of his country ; for if 
this were allowed, it would be constituting as many actions as 
there are men, which would be highly inconvenient. 

But in this the great difficulty is, when a man shall be said to 
have suffered an injury, or to have such a right as will entitle him 
to an action. And here the rules established by that society, of 
which he is a member, must govern ; and therefore, though a 
man has a right, yet if he be barred by the statute of limitations, 
he can have no remedy. 
Yelv. 196. jSo, if I promise by word only to 'convey lands, or to give 

BrownMii f?oods without delivering possession, or, if I promise to build a 
6 Co. 18 Roil, house without consideration (a), <^c. though by the laws of nature 
Abr. 9. these promises are binding, yet no action lies ; for without deed 

(a) But, if a ^^iW sealed and executed, or without consideration, no property 
dertakcs'to"' ^^ altered ; and every such promise is esteemed, in the eye of the 
build a house l^^j to be nudum pactum wide non oritur actio. 

for me, and does it ill, an actim on the case lies against him. Kelw. 78. Roll. Abr. 9. So, if 
a carpenter promises to repair my house before such a day, and does not do it, by which the 
house falls, an action on the case lies. Roll. Abr. 9. but for this vide AssunrpsU and Action 07i 
the Case. 

'^M* t^*^' *^^' ^* ^ cases where there may be damnum absque injuria^ the 
Noy°i84. pa^ty can have no action; as if a school be set up in the same 

town where an ancient school has been time out of mind, by 

which the old school receives damage, yet no action lies. 
rIiII A! ^Vo7 ^°' *^ ^ retain a master in my house to instruct ray children, 

though this may be to the damage of the common master, yet 

no action lies. 
Norris v. [If \ throw out windows in my house which overlook my 

itoyic, ^^v*'* neighbour's house, and break in upon that privacy which he be- 
The case of* ^^'"^ enjoyed, yet no action lies. 

Clierrington v. Abney, 2 Vern. 646. was cited in the argument, but the court thought it de- 
served no attention. See the note to this case in Mr. Raitbby's valuable edition of Vernon. 

_, , ~ No action lies for the fees of a counsel, or physician ; they 

Black. Com* ... ^ . j i j ^ j 

28. Chorley ^^'"S g^^en as a mere gratuity. 
V. Bolcot, 4 Term R. 317. 2 Atk. 332. 

Russell v. The The parties to civil suits are, individuals, who must be parti- 
st" R^°"' ^"l^i'ly ^^^sd, bodies corporate, and persons ^^e^a^/ incorporated, 
667. (6) Such rendered liable to be sued, and capable of suing by the pro- 
are the visions of particular acts of parliament, [b) The inhabitants of 
statutes of a county or district, unless so embodied, cannot be called upon 
haeraBd cry, ^^ answer crviliter for an injury sustained in consequence of any 

breach 



(13) In -wJhal Cases cm Action mil lie, ^x, 57 

breadi of their public duty ; for collectively, and qua inhabit- 
ants, they are not otherwise objects of civil jurisdiction.] 

As the lavi^ grants redress for all injuries, and gives a remedy Co.Litt. 128. 
for every kind of right, so it is open to all kinds of persons, 
and none are excluded from bringing an action, except on 
account of their crimes or their country ; as men attainted of trea- 
son or felony, popish recusants, persons outlawed or excom- 
municated, convict in apramunire, or alien enemies. 

A man that hath a special and limited property in goods, as a sBulst. sii." 
carrier that hath goods delivered to him, a sherift'who hath Sid. 438. Mod. 
levied goods, a bailee who hath goods in his keeping, Si-c. shall so. 2 Sand. 47. 
have actions against strangers who take them away, because y^Z '/^^' 
they are answerable in damages to the absolute owner. sTermR. 594. 

;||See tit. Trespass (C). Trover (C), Vol.VII.|| 

So, a man who has cause of action agamst two, may bring it Cro. Jac. is. 
against which he pleases : as, if A. takes the goods of C., and B. 
takes them from A., C. shall have his action against A. or B, at 
his election, because both damnified C. in their taking. 

So, if two of the sheep of A. have been lost, and one of them Alleyn, 5. 

• XT A 

is found again, and the shepherd of A. affirms it to be one of ^ T"'^"r"]i 

them, whereupon A. pays for the feeding of it, and causes it to ^^j.^ jq{' g^ q] 

be shorn and marked with his own mark, and after the shepherd, 

knowing this to be the sheep of A.^ falsely and fraudulently 

affirms to the bailiff of the manor, to which waif and stray 

belong, that the said sheep is a stray, whereupon the said 

bailiff' seizes it, Src, A. may have an action against his shepherd, 

for that by his false practice he hath created a trouble, disgrace, / 

and damage to him ; and though he hath good cause of action 

against the bailiff j yet this will not excuse the shepherd. 

II So, if^. positively state to the commander of a pressgang Flewster v. 
that B. is liable to the impress service, who in truth is not so, *^°y'^' 
and B. in consequence is impressed, A. may be sued in trespass ^nj ggg ' ' 
and false imprisonment by B. Alt'ter, it seems, if A. had only e Term R. 
said he beliexjed B. was liable. || 315. 

So, if one slander my title, whereby I am wrongfully dis- Alleyn, s. 
turbed in my possession, though I have remedy against the tres- 1 "y/ico kf '^ 
passer, yet I may have an action against him who caused the gEast i.it' 
disturbance. was held that 

it is not suffi- 
cient to prove a mere wrongful act of a third party as the consequence of the slander ; for the 
plaintiff may have his remedy against him. The damage must be the legal and natural con- 
fiequence of the slander; and see Cro. Jac. 471. 2 Bos. & Pull. £84. ; and tit. Slander {C)^ 
Vol. VII., where sec the cases as to slander of title,|| 

If there are several proprietors of a ship which hath usually Carth. 58. 

transported goods for hire, and a master placed therein by the ^°^°" ^"|^ 

part-owners, who hath 60/. wages for every voyage from London g galk. 440 

to T.y and J. S. without making any contract with the part- pi. i, 5 Lev. 

owners, and none of them being present, delivers certain goods 258. 3 Mod. 

on board to the master, to be carried for hire from London to ^21.8. C. 

7\ and the ship safely arrives there, but the goods are spoiled Vern. 297 

througli the neglect of the master, an action lies against the 298. 465.' 

part- 



^ ACTIONS IN GENERAL. 

2 Vem.643. part-owners; for tlious;h the master is chargeable in respect of 
8 Mod. 89. iiijj wages, so are the j^roprietors in respect of the freight, at the 
sfr^sos''^' election of the plaintiff. 

But Qucere whether all the part-owners are not to be sued; bnt clearly if they are not, it must 
be pleaded in abatement. Stra. 55.3. 822. 2 Black. R, 947. ||It is settled that if the action in 
sucli case be broniiiit in asjsnnijmt, all the i)art-owners must be joined, or the non-joinder may 
be pleaded in abatement, but it cannot be otherwise objected to. If the action be shaped in 
tort against the defendants as common carriers, according to the custom of the realm, then it 
seems the non-joinder of some parties cannot be objected to at all. See 2 New R. 454. 
12 East, 89. 452. 2 Marsh. 485. 3 Brod. & Bing. 54. But if the defendants are not common 
carriers, and the action is, in fact, founded on the contract to convey the goods, then, though 
the form of action be in tort, still it is substantially an action of contract, and the non-joinder 
of some parties may be pleaded in abatement. Idid. ; and see ante, Abatemenit, and Abbott 
on Shipping, 95, (5th edit.}{| 

M d Id' l'"^" attainted person is liable to civil suits; but he ought not 

case Post. ^^ ^e charged without leave of the court, or of a judge. || 
Cr. L. 61. Co. Entr. 246. a. b. Cro. Eliz. 516. Co. Entr. 248. 2 Anders. 58. Moor. 753. 

3 Inst. 215. 

(C) In what Cases distinct Things may be laid in the 
same Action. 

sCo. 87. but n'^HE distinction herein, with respect to real actions, depends 

for this wrfe q^ the different kinds of writs; for all original writs are of 

Owen 11 ^^^ sorts, viz. breve nominatum et innominatum. The first con- 

Kelw.\o5. tains the time, place, and demand, very particularly; and 

Dyer, 145. therefore in such writ several lands by several titles cannot be 

2Brownl. 274. demanded in the same writ. The other contains only a general 

complaint, without expressing time, damages, S^'c. as the writ of 

trespass quare clausum freight^ Sfc. and therefore several lands 

coming to the demandant by several titles, may be demanded in 

such writ. 

Cro. Car. 20. As to personal actions, the difference arises from the above- 

-'^' v*^i"''„.» mentioned division of personal actions, viz. such as are ex con- 

566. Keb. 847. ^ ^ , , ^ i t . r-ii ,,i c 

Bro. Joinder tractti, and sucn as are ex delicto, or founded on a toit ; tlieretore 

in Action, 97. debt on an obligation and on a mutuaUis may be joined, because 

Register, 95. the writ is general, and the declaration upon both will be war- 

139. (a) 1 he wanted by the authority given by the general words of the writ. 

tni6 reason ^ , ^ ^ .. 

whv actions So, debt and detinue may be joined in the same writ, because 

may or may there are writs in the register, in which they are both comprised 
not be joined, in the same writ. So, debt upon a lease and for clothes, they 
IS not the being in the words of the same writ. But debt and account, or 
of the defend- ^^^^ f^nd trespass (a) cannot be joined. 

nnt's pleas; for if that were the reason, debt upon an obligation, to which the plea is non 
at factum, and on a mutuatus, nil debet, could not be joined : therefore the true reason arises 
from the difference of the process, and the fines paid on taking out the original ; for in debt 
the old process was summons, attachment, and distress, and on taking out the original a. 
fine was paid to the king, which was in proportion to the sum demanded; but in trespass the 
process was a capias, because the man that had committed a tort might be supposed to fly 
from justice; and in this action the court set a fine on him in proportion to hii offence, and 
levied it by a capiaiur. Gilb. Hist. C.P. 6. 

8 Co. 87. In personal actions several wrongs or trespasses may be joined, 

"Tev 9- because they may be comprised in the same writ, and so may 

Raym. 233. several actions, on the case, where the case is of the same kind ; 

as 



(C) WJien dhlinct Things may he laid in same Action. 59 

as an action for a fraud on the delivery of the goods, and on the r/g^ ^^^ jj{-_ 

warranty of the same goods, being both on the contract. So, ficulty as to 

against a common carrier on the custom of the realm, and trover what counts 

may be ioined, because botii on the tort, it being a violation of ™^>; be joined 
^i_ / ^ ^ a 1- ii, u / \ 1" the some 

the custom not to deliver the charge, [a) declaration 

hath at length met with an easy solution : any counts that admit of the same plea^ and are 
followed by the same judgment, may be included in the same declaration ; but counts which re- 
quire a different plea, or receive a different judgment, cannot be joined ; and yet the cause of 
action comprized in such counts may in both cases be the same. Thus, a count against a 
carrier on the custom of the realm and one in trover may be joined, because the plea and the 
judgment proper to both are the same ; but, instead of the count upon the custom of the 
realm, let a count \7. assumpsit be substituted against the carrier, and trover cannot be joined 
with it ; because the plea to each is different. Brown v. Dixon, 1 Terra R. 576. Mast v. Good- 
son, 5 Wils. 354. Dickon v. Clifton, 2 Wils. 319.] IJIn extending the rule beyond what the 
cases cited warrant, the above note is not accurate, for there are cases where counts may be 
joined, although the plea is different ; thus, debt on bond and on a mutuatus, and debt on bond 
and on judgment, may clearly be joined. And even taken only affirmatively, the rule is not univer- 
sally true, that where the plea is the same and the judgment the same the actions may be joined ; 
for this is the case with the actions of trespass, and trespass on the case : the plea is the same, 
and the judgment in each is for damages and costs; and though in general the judgment in 
trespass is quod capiatur, and in case, quod sit in misericordia, yet sometimes there is an entry 
of a capiatur in case as well as in trespass. SeeTidd.Prac.il. And yet they cannot, in 
general, be joined. 2 Will. Saiind. 117. c; and note (c) by the last learned editors.|| 

But actions founded upon a tort and upon a contract cannot be 5 Lev. loi. 

joined, as ass7tmpsit and trover against a carrier ; for though these ^^^- ^^^* ■^^• 

come under the general head of actions on the case, yet they are j^, jyj^j _* 

more distinct cases than debt and account (6), which cannot be SeeLd.Ray'm. 

joined. 38. Salk. lo. 

3 Salk. 204. 
5 Mod. 85. Comb. 332. {b) Bro. Joinder in Action, 97- ||But if the carrier be sued in case 
upon the custom of the realm a count in trover may be joined. Brown v. Dixon, I Term 
R. 277.11 

If trover and assumpsit are joined in one action, and upon and ^ Lev. 99. 
guilty the jury quoad the trover find for the defendant, and quoad ^^^ *"j. 
the assumpsit for the plaintiff, yet he shall not have judgment ; for 
these cannot be joined in the same action, and the severance by 
the jury will not help it, the declaration being naught at first. 

One action will lie for entering the house of the plaintiff, break- Alleyn, 9. 
ing his chests, and carrying away his goods, and for beating his Stile, 43. 202. 
servant p^ quod servitium amisit. ^_ ' al™'f.^e . 

Hand see Ditcham v. Bond, 2 Maul. & S. 456. ace.|| 

yAnd so also for entering his house and debauching his Worsland 
daughter per quod servitium amisit, |] v. Walton, 

2 New R. 476. 

If in an action upon the case the plaintiff declares, that whereas Cro. Car. 20. 
accommodassit to the defendant a gelding ad cquitand. ah L. usque ^.^^ *"^ 
£., ct ibidem salvo deliberand. to the plaintiff, the defendant r^\ Yiut the 
intending to deceive the plaintiff, rid upon the said gelding from plaintilFhad 
L. to E. and E. unto L. again, and by that riding so much judgment, 
abused the saitl horse, that he became of little value; and though ^^'"? ^^^^^ 
the plaintiff at E. demanded a re-delivery of the said gelding, yet „^^ Hobart 
the defendant refused, and yet doth refuse to deliver him, and the defendant 
hath converted the said gelding to his own use; this declaration might have de- 
is not good (c), because it contains distinct matters, for part is '""'"red for 

'^ ^ ' r 1 J the doubleness 

founded 



60 



ACTIONS IN GENERAL. 



tton. 

Orton V. 
Butler, 5 Barn, 
& A.652.; 
and see 
1 New R. 43. 
6 East, 3.33. 
Brill V. Neele, 
3 Barn. & A. 
208. 



Hill, 
Brownl. 86. 
Cro. Jac. 68. 
Moor, 914. 
Noy, 3. S. C. 



of the declara- founded upon the contract, and part upon the torty which are 
several causes of action. 

II And so where a count stated that the defendant had received 
to plaintiff's use a certain sum of money to be paid by defendant 
to plaintiff on request, and that the defendant did not pay on 
request, and converted the money to his own use, the count was 
held bad on demurrer, it not being, either in form or substance, 
a count in trover. A count stating that defendant was indebted 
to plaintiff for work and labour, and being indebted, that he 
undertook and promised to pay, <^c. whereby an action hath 
accrued, Sfc. is not a good count in debt, and tuunot be joined 
with counts in debt.|| 
Hob. 249. ^^ ejectment and assault and battery were joined in one writ, 

s'^cT'and ^^^ "*^'' ff^'^ty pleaded, and a verdict and entire damages given 
Winch held for the plaintiff"; and it seems to have been aided after verdict, 
the writ 

naught, but the damages being found severally, the plaintiff released those for the battery, and 
had judgment for the ejectment. 

Yelv. 65. Where one hath a right to recover in the same kind of action, 

Champernoon though he derives his right from different titles, yet being con- 
joined in him, he may recover in one action : as if in debt upon 
2 & 3 E. 6. c. 13. for not setting forth tythes, though the plaintiff 
shews, that by prescription the rector of A. hath had two parts, 
andlhe vicar of J. the third part of the tythes there, and that the 
said rector and vicar, by several leases, did demise to the plain- 
tiff^ whereby he became pt'oprietarius of the said tythes, and the 
defendant sowed, Sfc. this action is well brought; for though the 
vicar and parson could not join, because they claim severally by 
divided rights, yet when both titles are conjoined in one person, 
the matter of the tide is also conjoined; and this being a per- 
sonal action and founded upon a wrong, it is sufficient to shew 
generally, that the plaintiff isjt>7??fl;/-m or propnctarius of the tithes, 
without saying by what tide. 

If A. being seised of a third part of a messuage, ^'C. in fee, 
demises the same to B. for years, who assigns to C, and A. by 
bargain and sale enrolled conveys his reversion to D. and his 
heirs, who was then seised of another third part in fee, and 
afterwards the said Z). leases his third part also to the said C. 
for years, and dies ; and his heir by bargain and sale enrolled 
conveys the reversion of the said two third parts to^. and his heirs, 
after which waste is done ; E. (a) may bring one action of waste 
upon these several leases, for that the interest neither of the 
theassignment terms nor of the inheritance was severed or divided to several, 
in one and ^"^ ^^^ ^" °"^ person at the time when the waste was done. 
the same thin<». Pt^f Popliam Ch. Just. Vide head of Waste. 

Cro. Jac. 329. If in covenant the plaintiff shews that A. was seised in fee of 
Pyot and Lady one messuage, and possessed of another for a certain term of 

'^^^ 1 • 1111 t t r* •% r* 

years yet endurmg, and let both to the defendant for a less term 
of years, and that the defendant did covenant to repair, S^x., and 
shews that A. by one deed did grant to the plaintiff the reversion 
in fee, and by another the reversion for years, ^c, and that after 

the 



Poph. 24, 25. 
Haydock v. 
Warn ford, 
Cro. Eliz. 290. 
Owen, 11. 
S.C. 



(rt) And the 
rather because 



St. John. Lev 
110. S.C. 
cited. 



(C) TVhen distinct Things may he laid in same Action. Gl 

the houses were out of repair, S^c. this action is well brought; 
for as upon several leases or upon several grants of a reversion 
one action of vk^aste lies, so for the same reason one writ of cove- 
nant will lie. 

But one cannot in the same action join a demand against one Hob. 88. Her- 
in his own right, and a demand on him as representative of renden and 
another ; as if in assumpsit against an administrator, the plaintiff 558"g'^*p S ' 
declares upon a sale of goods to the intestate for 200/. and upon this wVit- head 
another sale to the defendant himself for 27/., and that upon of Executors 
account the defendant was found indebted to the plaintiff' in '^"^ Admms- 
these sums, and promised, Sfc. the declaration is naught, for the '" '"^*^ ^' 
charge being: in several manors, viz. in his own right, and as 
administrator, it ought to have been by several actions. 

[Where the same persons are assignees of two bankrupts, Hancock 
under separate commissions, they cannot join in the same action and others, 
a joint debt due to both the bankrupts, with separate debts due jja-f^ar^i ^' 
to each. ^ 3 Term r! 433. 

But where the same persons were assignees o? A. and B. and Streatfield 
likewise assignees of C, and they declared as such for a joint de- and others, as- 
mand due to all the bankrupts, such declaration was holden signees, v. Hal- 
good upon a motion in arrest of judgment.] ^ ^^' ^ ""^ 

II But if ^. 5. and C. are appointed assignees under three Ray v. Davies, 
separate commissions against three bankrupts, they cannot sue 2 Moo. 3, 
as if they were joint assignees of the three bankrupts, or it is a 
ground of nonsuit. 

Assignees under a joint commission against A. and B.^ in suing Stonehouse v. 

on a separate contract made with A. may describe themselves , ^'^' ^\^r. 
11 1 • r ^ • 1 "^ • r, I, 3 Camp. 599. 

generally as the assignees 01 A., without nammg Jo.\\ Harvey v. 

Morgan, 2 Stark. 17. 

Several persons may join in an action where their interest is ^(^^ this vide 

joint; as if the several cattle of A. and J5. are distrained, and head of Jo?M^ 

C, in consideration of 10/. to him paid by A. and J5., assumes i5g j^q]] ' 

and promises to them to proc.ire the cattle to be re-delivered to Abr.51. S. C. 
them, if they are not re-delivered accordingly, one joint action 
lies, for the consideration is entire and cannot be divided. 

So, if A. hath one mill and B. another in the same manor, 2 Lev. 27. 

which they have used to repair, and time out of mind all the Litheley and 

grain which was ground and spent in the houses of the tenants ^?^^,'^°"; 

of the said manor, and was not ground at one of the said mills, 2Saund^ii5 

hath always, and ought to be ground at the other, and C. a Vent. lei. 

tenant of the said manor, grinds at another mill, ^c. A. and B. S. C. agreed 

may join in one action against C, for the damage is entire to Pf ^"^'f"^ '^"" 
\ /u 4.1, • -11 o » & riai7i; but 

both their mills. because the 

plaintiffs had declared that all the grain ought to be ground at those two mills, or one of them, 
which might be, if all ought to be ground at one of the mills and nothing at the other, for 
their expedition they prayed a nil cap. per billam. 

II So also certain persons, dippers of the wells at Tonhridge^ Wellerv. 
duly chosen by the homage of the Court Baron, and approved ^^l* 
by the lords according to the terms of a private act of ^^j ^^^ ^^'*- 
parliament, were held entitled to maintain a joint action i Will. 

against 



m 



ACTIONS IN GENERAL. 



Saimd. 125. against the defendant for exercising the business of a dipper, 

2/rf. 116. not being duly chosen and approved according to the act; for 

though each dipper received gratuities for his separate use, yet 

they were all jointly concerned in interest as against a stranger 

disturbing them in their employment. 

Townsend v. So a herald and a pursuivant at arms may maintain a joint 

Neal, 2 Camp, action for work and labour in making out a pedigree, both having 

*^°' been on duty when the order was given, although one of them 

was applied to by the defendant. 

But where two parties agreed with defendant to assist him 
with their horses, and they were to give in their accounts sepa- 
rately, and each assisted him with three horses, it was held 
that the contracts were separate, and the parties could not sue 
jointly. II 

If within the parish of A. there is a custom for the parishioners 
yearly to elect two persons to be churchwardens there, and ac- 
cording to the said custom B. and C\ are elected, but the surro- 
gate of the bishop refuses to admit and swear them into the said 
office ; upon which they bring a mandamus, and he falsely returns 
a custom for the vicar to choose one churchwarden, and that 
therefore he cannot admit both the said parties, but is ready to 
admit one of them ; they may join in an action for this false re- 
turn, for the niandajmis and whole prosecution thereof was joint, 
and this is no office of profit, nor action brought for that, but 
for the unjust return. 

So, if the registrar of the bishop refuses to register a licence of 
a chapel for a conventicle, according to 1 W. & M. c. 18. and 
upon a mandamus to do it makes a false return, several of the 
inhabitants may join in one action, against him. 

But, if one man calls two other men thieves, and shews in 
certain of what, ^c. they shall not {a) join in one action against 
him ; for the wrong doer to one is no wrong to the other, 
(a) So in false imprisonment. Dyer, 1 9. 



Smith V. 
Taylor, 
aChitt. 142. 



3 Lev. S62. 
Ward et al. 
V. Brampston. 



3 Lev. 365. 
Vide 12 Mod. 
349. 571. 



Dyer, 19. 

Gouldsb. 76. 
S. P. Cro. Car. 
512. S. P. 



Kelw. 52. 
Fitz. Joinder 
in Action, 17. 
Reg. 105. 
Owen, 106. 

Cooke v. 
Batchelor, 
3 Bos. & Pull. 

Barratt v. 
Collins, 
10 Moo. R. 
446. 



Dyer, 351. Q. 



So, in assault and battery ; for the battery done to one cannot 
be the same as that done to the other ; and one battery may 
hurt more than the other. 

l|However, if slander is spoken of two partners respecting their 
joint trade, they may have a joint action. 
150.; and see 2 Will. Saund. 116. a. 116.b. 

Where two plaintiffs jointly sued the defendant for a malicious 
arrest, alleging as special damage a joint injury from the wrong- 
ful imprisonment, and also a joint expense thereby incurred by 
both, the court ordered the judgment to be arrested, since the 
injury from wrongful imprisonment could not be a joint damage. 
But it seems that on the court observing that the jury had only 
found damages for the joint expense, they ordered the postea to 
be amended. || 

If a man holds several lands of several lords by heriot custom, 
and to defraud them of their heriots makes a fraudulent gift of all 

his 



(C) TVheji distinct Things may he laid in same Action. 1)3 

his beasts heriotable, all the lords may join in one action upon the 
ISEIiz. c. 5. 

If two joint owners of a sum of money are robbed upon the Dyer, 570. 
highway, they may join in one action against the hundred 
in whicli, 4^c. otherwise, if the sums are several, and several 
properties. 

\\A. B. and C. having been appointed assignees of a bankrupt, Brand v. 

and acted as such, A. and B. pay each half of the solicitor's bill. Boulcott, 

A. and B. cannot maintain a joint action against C for his pro- ^ jl"*^- '^ ;""• 
... . , ,•' , . ° ^1 ^ 2.j5. ; and see 

portion or the sum paid; each must sue him separately. Graham v. 

Robertson, 2 Term II. 282. Kelby v. Steel, 5 Esp. Ca. 194. 

But where A. B. and C. having dissolved partnership, and C- Osborne v. 

after such dissolution drew bills in the partnership name in -£.'^^\,). . 

favour of Z).; upon which Z). brought his action against^. i5. and .,„j sJe " ' 

C, and C. having pleaded his bankruptcy, Z). entered a nolle ioEast,4i8. 

prosequi as to him, and recovered judgment against A. and B.j ' Carr. & P. 

which judgment was satisfied by their attorney, who advanced 1^'^f "' ^ 
part of the money for them on their Joint credit^ and borrowed 
the rest on ihe\vjoi7it credit, it was held that the sum so paid in 
satisfaction of the judgment might be recovered by A. and B. in 
a joint action against C. It would have been otherwise if each 
had contributed his share to the attorney to pay the demand. 

The several members of a club associated for the purpose of Everett v. 

buying coals and dividing them in proportions amongst them- 1'i"dall, 
selves, cannot maintain separate actions for penalties against the sp. i69. 
seller. I] 

If A. delivers goods to B. to deliver over to C, and B. does i Bulst. 68. 

not deliver them over accordingly, but converts them to his own Hiird..32i. 

use, either A. or C. may have an action against 5., but both shall said that th^ 

not have an action ; but he who first begins his action shall go could not both 

on with the same. join. 

If A. is seised in fee of the reversion of a close expectant upon 5 Lev. 209. 

a term for years, and B. is possessed of another close adjoining Bidlesford and 

thereto, between wiiich closes there runs a rivulet, and B. stops Vn 3,4, 

it, per quod the close of A. is surrounded, so that the timber- q^^, Jesser v! 

trees, Sfc. become rotten ; A. in respect of the prejudice to the Gifford. 

reversion, may have one action, and the termor in respect of the llSee Knight 

possession, and of the shade, shelter, S^c. may have another action, T'n:^^ '' „ n 
and a satisfaction given to the one is no bar to the other. °" 

One action will not lie against several men for speaking the Palm. 3x3. 

same words ; for the words of the one are not the words of the Adjudged 

other, and can no more produce a joint action, than their words "P°" mot'on 

1 . u • I .. u after a verdict 

and tongues can be said to be one. ^-^j^. pi^intift' 

Cro. Jac. 647. S. C. adjudged. Style, 244. S. P. 2 Burr. 984. S. P. Bulst. 15. S. P. but 
there said, that it was otherwise in the spiritual court, tor that one libel may be against 
several persons. 1| Action against husband and wife for words spoken by wife, and action against 
husband only for words spoken by him, cannot be consolidated. Swithen v. Vincent, 2 Wils. 227.; 
and see 1 Chitty on Plead. 64. 204., and Vol. I. tit. Baron and FemcJ^ 

But, if two men procure another to be indicted falsely for a Latch. 262. 

comiuoii barretor, he may liave an action upon the case against So,iftwocon- 

•' *■ - ° V spire to mam- 



64. 



ACTIONS IN GENERAL. 



t ' a 't d '^^"^ ^^^^ ' though ill strictness the procurement of one is not 
one only ^ives the procurement of the other, (a) 

money. Bro. Joinder in Action, 47. Fitz. Error, 31. Fitz. Maintenance, 15. So in trespass. 
Latch, 262. Vide head of Trespass. So, one decks tanltim lies against all the jurors who 
take money, for they all give but one verdict, and are but one jury. Bro. Joinder in Action, 
5. 47. 100. 108. Fitz. Dedet tantum, 1. 4. 6. (a) It is in the nature of a conspiracy. It is one 
jamt, entire act. 

Schuidam v. [] Where there are two or more bailiffs, S^-c. of a borough, a 

Bunniss, joint action will lie against them under the stat. of 3 Geo. 3. c. 1 5. 

for refusing inspection of the books and papers wherein is entered 
the admission of freemen, though the words of the statute are in 
the singular number, " mayor, or bailiffj S^-c" for the breach of 
trust in one is a breach of trust in both, they being in law but 
one officer.] 

II Where a landlord demised to three persons jointly, and two 
of them without his assent assigned their interest to the third, and 
the plaintiff's goods being on the premises were distrained by 
the landlord for rent; it was held, that the plaintiff might sue the 
three persons jointly for money paid by him to redeem the goods 
from the distress, for all the three were liable to the landlord by 
covenant to pay the rent.|| 

[One action, it seems, will lie against all the coroners of a 
county for a false return to a capias utlagatum. 

Where two partners contract to pay a certain sum of money 
equally out of their private cash to a third person, they must be 
jointly sued upon this contract, for it is joint.] 

II Two candidates at a county election are jointly liable to 
the sheriff for the expenses of the election, if they have jointly 
promised to pay ; but if they have not jointly promised, they must 
be sued separately under the stat. 18 Geo. 2. c. 18. § 7. 

Where a party of several persons dine together at a tavern 
they are jointly liable for the whole expense, and not merely 
each for his own share. But the officers of a regimental mess 
are only separately liable, each for his own share. 



Cowp. 192. 



Exall V. 
Partridge, 
8 Term R. 

308. S.C. 
3 Esp. 8. 



Freem. 191. 

Byers v. 
Dobev, 1 H. 
Blac.236. 

Wathen v. 

Sandys, 

2 Camp. 640. 



Where goods were ordered by one of two chapelwardens, for 
the use of the chapel, it was held that the chapelwarden giving 
the order might be sued separately without joining his brother 



Forster v. 

Taylor, 

3 Camp. 49. 

Browne v. 

Doyle, 

3 Camp. 51. 

Shaw V. His 

lop, 4 Dow. 

&Ry.241.; 

and see 8 Moo. " -jgn 

20. iBing. '«araen. 

201. 6 Dow. & Ry. 122. 

Carnev.Legh, Where several actions were brought against several members 

6 Barn. & C. ^f ^ mining partnership for the same debt, the defendant in one 
action having paid the debt and costs in that action, the court 
stayed the procedings in the other actions without costs. 

The same plaintiff may bring several actions against several 
parties, all liable to him in respect of the same injui'y, where he 
does not obtain "adequate redress in the action against the party 
first sued. || 

A man cannot declare against one defendant for an assault and 

judged. llAnd battery, and against the other for taking away his goods ; be- 

Alcxander^' ^^"^6 the trespasses are of several natures, and against several 

5CamD.35.11 persons, (i) 

^b^ Ana are several distinct causes of action. 

If 



124. 



Morris v. 
Robinson, 
3 Barn. & C. 
196. 5 Dow. 
& Ry. 35. 

Stile, 1 53. ad- 



ACTIONS LOCAL AND TRANSITORY. 



^ 



If A. leases for years to B. and C. rendering rent, and C Palm, ms. 
assigns his moiety to D. and after rent is arrear, A. may bring 
one action of debt for the rent against B. and D. for the rever- 
sion remains entire. 



ACTIONS LOCAL AND TRANSITORY. 



""^ I -"/^-'f T^" 



I^RIGINALLY all actions were tried in the proper counties 
in which they arose, pursuant to the maxim, vici7n mcinofum 
facta jyrccsumuntur scire: this created no inconveniency, for all 
men being anciently in decenna^ they were easily come at, the 
decenna being responsible for their appearance. But, when the 
custom of the decennary began to wear off, men used to fly from 
their creditors, and this begot the distinction between local and 
transitory actions; the first relating to lands, which must be tried 
where the lands lie ; the other, a debt or duty adhering to the 
person wherever he fled. Hence men omitted to date their con- 
tracts from any certain place, and began their obligations with 
noverint universi. When this distinction was established, the 
licence it gave was soon abused to a great degree ; for plaintiffs 
would lay their actions far from the place where the fact was done ; 
and the defendants, for fear of being outlawed, where necessitated 
to carry their witnesses into that county, how far soever remote 
from the place where the cause of action arose. 

l|To redress this abuse, and to compel the suing out of all writs 
arising upon contract in the very county where the contract 
arose, it was ordained by the statute of 6 R. 2. c. 2. that if the 
writ was of one county, and the plaintiff" declared of another, the 
writ should be quashed. But, this not expressly forbidding the 
writ to be sued in a foreign county, the statute of 4- H. 4. c. 18. 
directed all attornies to be sworn that they would make no suit 
in a " foreign county." And the court rules of 15 J^liz. and 
A. D. 1630. made it highly penal for attornies to transgress this 
statute. 

Soon after the statute of H. 4. a practice began of pleading in 
abatement of the writ the impropriety of its venue, even betbre 
the })laintiff^ had declared. At first in the reign of H. 5. the 
courts examined the plaintiff" on oath as to the truth of his venue : 
but soon after they allowed the defendant to traverse the venue, 
and to try the traverse by the country. But this practice being 
subject to much delay, the judges introduced the present method 
of changing the venue upon motion, upon the equity of the sta- 
tutes of R. 2. and H. 4. Which Lord Holt says began in the 
time of James I. And among the fees of the King's Bench found 

Vol. I. F by 



7 Co. 1. Gilb. 
Hist, C. P. 89. 



Black. R. 

1032. 



Rastall tit. 
Debt, 184. b. 
Fitzh. Abr. tit. 
Briefe, 18. 

Salk. 670. 



60 ACTIONS LOCAL AND TRANSITORY. 

by a jury under the king's commission 1630, one is, " for every 
" rule to alter a visne." Tyre's Jus. Filiz. 231. The form of 
the rule and affidavit are also stated in &yl, Pr. Reg. (edit. 1657.) 
331., as established in 23 Car. 1. 

An affidavit was necessary, because the motion succeeded, and 
was equivalent, to a plea in abatement ; and these are called the 
common rule and common affidavit in 16 Car. 2. 1 Sid. 185.; 
though the practice did not universally prevail till after the sta- 
tute of jeofails 1 6 & 1 7 Car. 2. c. 8. Before that it was usual to 
wait till after trial and verdict, and then arrest the judgment for 
want of a proper venue. But the statute having abolished that 
practice, the mode of changing the venue by motion and affidavit 
began universally to prevail. 

Yet as it would be hard to conclude the plaintiff by the single 
affidavit of the defendant, he is at liberty to aver that the cause 
of action arose in the county where the venue is laid, and to go 
to trial on that fact at the same time that the merits are tried by 
undertaking to give material evidence in that county. This is 
equivalent to joining issue, (as in Fitzherbert before cited,) that 
Gilb. H.C.P. the cause of action arose in the first county. And if the plain- 
*•*• tiff fails in proving it, he must be nonsuited at the trial; which 

has in this case the same effect as quashing the writ by a judg- 
ment on a plea in abatement. || 

And here we shall consider, 

(A) What Actions are Local and Transitory. 

(B) In what Cases the Court will change the Venue. 



(A) What Actions are Local or Transitory. 

That all A LL actions real or mixed, as trespasses, quare clausum fregit, 

actions on pe- ejectmenU *waste. Sec. must be laid in the county where the 

nal statutes i i t / \ ^ 

must be laid 1^"^*^ he. {a) 

in the proper county, vide Action qui tain, letter (C). Co. Lit. 282. 6 Mod. 222. (a) If not 
laid so, it is cause of demurrer. 2 Black. R. 1070. ||But advantage can be taken of it only 
by demurrer ; for it is aided after verdict by the statute of 16 & 17 Car. 2. c. 8. Mayor, &c. 
of London v. Cole, 7 Term R. 583., and see Willes, 431. Not, however, in the case of an 
ejectment, for the sheriff of one county cannot deliver the possession of land in another. If 
the declaration do not set out the parcels (as is now often the case), it is necessary to set out 
the indenture on oyer in order to raise the objection. || 

Cro. Car. So, an action of debt for rent, ||or covenant for rent or not 

^^^ 'rh""?^* repairing, 8^c.,^ against an assignee of a term on the privity of 
V. Cornwall estate is local, and will lie nowhere but in that county where 
1 Wils, 1*65! the lands are. 
JCarth. 182, 185. Stevenson v. Lambard, 2 East, 580.|1 

s Mod. 537. g So, also, the assignee of the reversion must sue the assignee 

Cartb ^s? of the term in the county where the land lies. And so also, as 

1 Salk.8o. i-o the assignee of the term suing the assignee of the reversion; 

5 Rep. 17. a. for 



(A) WItat Aciions at^e Local or Transitory. wf. 

for the statute transfers the privity of contract to the assignee of 
the term, in the same manner as the lessor had it; and the lessor 
must sue in such case where the land lies, and be sued there. || 

So, where A. granted a rent-charge to B. and C. for their Hob. 37. Pine 
lives, and the lands out of which it issued came to the defendant ^- Countess of 
after the death of A., and the plaintiff, as executor of the sur- '^^^ ^'^' 
vivor of the grantees, brought debt for arrears incurred in their 
life-time, and laid his action in the county where the lands lay ; 
on appHcation of the defendants to have it tried elsewhere, 
suggesting the plaintiff's power and interest in that county; 
it was holden a local action, and not triable elsewhere. 

A.f as assignee of a reversion, brought covenant against the Carth. 182 
assignee of the lessee, on an express covenant between the lessor Damer and 
and the lessee, for payment of rent reserved out of lands which Barker. Stilk. 
lay in IrclandL and which was made payable in London. On ^^.'^P , ^J.^ 

I ^ xT_ • • T • o y • '' 1111 1 1 5 Mod. 336. 

plea to the jurisdiction or the court, it was held, that though ghow. 191. 
such action may be maintained here by the lessor against the S. C. 6 Mod. 
lessee (a), yet that by the assignment the privity of contract was 194- S. C. 
destroyed; and there being nothing but a privity of estate ^Jtted^tobe" 
between the two assignees, it made the action local. good law, 

there being no privity of contract remaining ; and there is no difference between debt and 
covenant where the action is by lessor against lessee, &c. {a) The assignee of the reversion 
may maintain debt or covenant upon the statute 52 H. 8. cap. 34. against the lessee ; <per 
Holt C. J. 6 Mod. 194. for the pnvity of contract is transferred to the grantee by the statute. 
Carth. 183. i Saund. 238. S. P. 240. S.P. ||See the notes to this case in Will. Saunders, 
(5th ed.)]| 3 Lev. 154. 1 Wils. 165. l|So also may the lessee bring covenant against the 
assignee of the reversion in any county by virtue of the statute. Thursby v. Plant, 1 Will. 
Saund. 258.|i 

II Whenever the action is brought upon the contract itself it Bulwer's case' 

is transitory ; therefore the lessor may bring debt or covenant J „%' |' ^' . 
- • ^ .1. 1 111 '' ^ • 11 -1 WiU.Saund. 

against the lessee, and the lessee covenant against the lessor m 241. e. 

any county. 

An action of debt for use and occupation is not local. || Egler v. Mars- 

don, 5 Taunt. 25. 

But where the lessor brought debt against the lessee, and 6 Mod. 194. 
declared on a demise of lands which lay in Jamaica^ on plea to yat^^'^Salk 
the jurisdiction of the court, and objection, that if the defendant 65i. p.si. 
had any good local plea, he was hereby deprived of it ; the S. C. 
court held, that this being on the privity of contract, was a (*)2 Stra. 776. 
transitory action {h\ and might be laid any where; and that if a ^'b 82. pl"l9. 
foreign issue arose which was local, it might be tried where the (c)'For thin 
action was laid; and for that purpose there may be a suggestion mde 6 Co. 48. 
entered on the roll, that such a place in such a county is next 7 Co. 26. 
adjacent (c) ; and it may be tried here by a jury from that place, ^*^"*" ^^' 
according to the laws of that country : and upon nil debet pleaded, 
the laws of that country may be given in evidence. 

If a declaration contains matters lying in two counties that Cro.Eliz.64«, 
join, it shall be tried by both counties, on a venire directed to IJAs to an 
the sheriffs of both counties, who are to summon six of each ^f^}^ *'" .f "; 
^°"" V • see St. 7. R. 2. 

c. 10. Co. Litt. 154 a. F.N. B. Iso a., and Z5 H. 6. so. a-lj 
F 2 II Where 



68 ACTIONS LOCAL AND TRANSITORY. 

Biilwer's case, || Where the action is founded upon two things done in severs 
7 Co. 2. a. counties, and both are material or traversable, and the one 
f*^*' ^ li ^^^'^' without the other doth not maintain the action ; there the plaintiff 
Mayor &c. "^^y ^^i"'"© l^'s action in which of the counties he will.H 
of Loiulon V. Co!e, 7 Term II. 583. Pope v. Davis, 2 Taunt. 252.; and see Cro. Eliz. 646* 
Sed vide 3 Barn. & C. 700. 4 Barn. & A. 179. 

Latch. 262. An action of debl ag-ainst the executor of a lessee, in the 

271. .J Co. 24. detinet for arrears in the testator's lifetime, may be brought any 
"^m°^-^"'k' where; but where it is in the debet and detinet for rent accrued 
det'mct ^" ^'^^ executor's time, it must be where the land lies, (a) 

against an executor for rent accrued in his own time may also be laid any where j for he is 
chari^d on the privity of contract, and is only liable to the extent of assets. 1 Sid. 266. 
2 Lev, 80. 1 Will. Saund. 1. note 1. and 241. c. notes, and cases there cited.jl 

Co. Lit. 282. All personal actions, as deht^ detinue, assaidt, deceit, trover and 

Debitumetcon- conversion, account, Sfc. may be brought in any county, and laid 
mdliusloci 2 ^^ ^"7 P^'^^e ; and the defendant cannot traverse it, or be allowed 
Inst. 231. to say, that the cause of action accrued in another county or 

7 Co. 3. different place, except in the case of an officer of justice, who 

may plead a special justification. 
Griffith V. [An action against the sheriff for a false return is transitory ; 

Walker, 1 for that which is false is universally so. 

\Vlls.556. "^ 

Gregson v. The assignee of a bail-bond may bring an action upon it, 

Heather, either in the county where it is taken, or in that where it is J 

2St.-a.727.Ld. assigned. J 

Kaym. 1455. ° 1 

B.C. \ 

Mayor of Ber- An action for breach of customs of a town is local: the aver-' 

wick V. Lwart, ment of an immaterial fact will not in such case warrant the 
2 Black. R. , . . „ , ^ . 

1068. laying the venue out or the proper county.] I 

b. 6 Mo j. 228 "^^ action may be brought on a contract or matter which 

2 Ld. Raym. ' arose beyond sea ; as, if A. enters into a bond to B. in any 
1043. 2 Salk. foreign country, and the bond bears date in no place, B. may 
^•''^- P'-^- bring his action where he pleases, and allege that the bond was 
" L(I Rav-in "i^de in any place in England ; but if there be a place mentioned, 
1212. ii'Mod. ^s Bourdeana: in France, then shall he allege that the bond was 
51. pi. 21. made in quodam loco vocat. Bourdeaux in France, (to wit) in 
Cowp. 177. Islington in the county of Middlesex, and from thence the jury 

shall come. 
Bayley on ||In declaring on foreign bills, though it is usual to state that 

fl i ir^ ^^^ ^^^^y were drawn at the place where they bear date, adding the 
V. Morris venue under a videlicet, yet this does not seem necessary. 1| 

3 Camp. 504. ; see 2 Barn. & A. 501. 1 Barn. & C. 16. 

Dutch W. L [An action may be maintained in England, to recover money 
MoserYs^tra ^°^''^°^^'*''d at Amsterdam, and covenanted to be paid in bank 
612. 2Ld.''' there. « 

Kaym. 1352. S- C. ' 

F^hf'a" ^' Trespass and false imprisonment will lie in this country fo • 

Cowp'. 161. ^" ^"j"0' of that nature, committed abroad in an English set ■ 

tlement. 
Cowp. 180. It was formerly thought that an action arising abroad, though 



n 



(B) In "what Cases the Cornet uill change the Vctiue. 09 

in its nature local, as trespass quare claimimfregit, might be main- 
tained in this country, if the satisfaction soug/it wej-e mereli/ per- 
sonal and for damages, and there would be otherwise a failure of Doulson v. 
justice : but that opinion hath been over-ruled, bein<y found to Matthews, 4. 
be inconsistent with the settled and acknowledged distinctions f'enn II. so.-, 
between actions local and transitory.] ^^g ' 

II Although an action for diverting the water of a navigation be Company of 

in its nature confessedly local, yet it is not necessary to give a Proprietors 

local description to the nuisance; and, therefore, if it be doubtful ^^j ip^gj^^'^-'^ 

whether the place where the navigation is stated to lie be laid in Navijration 

the declaration as avenue or as local description, it will be v. Donalas, 

referred merely to venue, and need not be proved to be at such 2 Eii^t, 497. 
place; but it is sufficient if it be at any other place within the 
county..|| 

(B) In what Cases the Court will change the Venue. 

T^HE defendant cannot by his plea oblige the plaintiff to lay his («) Lntw. 

action in a different county from that in which he brought 1437. Co. ' 
it, unless the matter pleaded be local {a) ; for in transitory actions J/^-n^if f ; ^ 1. 
he must move the court on affidavit (6), that if the plaintiff hath \-^^ j^ ^^l '' ^" 
any cause of action, such cause accrued in the county of, 4*^. cessary, be- 
and not where the plaintiff hath laid it, Sfc. and such motion cause the u!o- 
must be made before issue joined (c), for by joining issue, he *'"" ^"^" 
agrees with the plaintiff as to the manner of bringing the action : wasefrjivilcnt 
and though the court seldom refuse on such affidavit to change to a plea in 
the venue, yet if, before or after the motion made, the plaintiff abatement. 
will enter into a rule to offer no evidence but what arises in the " }^ . ' . 
county where he has laid his action {d), the cause will be tried there, niust state 
jmsitivefy that " the cause of action (if any) arose in A. (the county to which it is prt"«vt'tl (o 
*' change tiie venue) and not in 13. (the county where it is laid in the declaration) or elsc- 
*• where out of A." This is the established <brni with which the courts exact a sirict com- 
pliance. Cole V. Goring, Barnes, 477. Belshaw v. Porter, /6/(i. 478. 4 B^irr. 2452. Alien 
V. Griffiths, 3 Term R. 495. ||And by a late rule of li. R. it must be drawn up " ou rcadin«' 
" the declaration," 11 East, 275. I'Marsh. 243. 1 Chitt. R. 57. 534.|| It hath been ques- 
tioned, though it is frequently done, whether the venue can properly be changed into Wales: 
certain it is, from the terms of the affidavit, that it cannot be directly changed into the next 
English county, though the process may be afterwards awarded into it. 4 Burr. 2452. 
Dougl. 262. IJBut now since the latitat is holden to run into Wales, it has become the com- 
mon practice to change the vemie from an Englisli to a Welsh county. 2 Stra. 1270. 2 Black 
R. 962. 6 East, 355. li \y\ the case of a libel dispersed in several counties, the vemie cannot 
be changed, because the affidavit cannot be made in the prescribed form, the |)ublication of 
the libel being co-extensive with its circulation. Pinkney v. Collins, 1 TermR. 571. Clissold 
V. Clissold, Id. 647. S. P. ||l Brod. & B. 299-11 B"* if the printing and publishing were both 
in the same English county, or if the libel were written here, and sent abroad, there is then 
only one Englisli county in which the cause of action arose. Freeman v. Norris, 3 Term R. 
300. Metcalfe v. Markham, Td. 652, One only of several defendants may make the afTidavit. 
Box V. Reed. Barnes, 482. Where it appears on the face of the declaration, that the cause of 
action is /oc«/, no affidavit is necessary. Mayor of Leicester v. Green, Id. 492. snpra (A', 
(r) It has been received afterwards, 1 Term R. 781. It may be changed after an order for 
time to plead, though upon the terms of pleading issuably ; but not after an order for time to 
plead, upon the terms of pleading issuably, and taking short notice of trial at the first sitti?i<»s 
in London or Miildlescv^ because t/icre a trial would be lost. Petyt v. Berkley, Cowp; 510. 
Himter v. Gray, Barnes, 49.3. S. P. UShipley v. Cooper, 7 Term R. 698. Wilson v. Harris, 
•2 Bos. & Pull. 320. Talmash v. Penner, 3 Bos. & Pull. 12. It cannot be changed at the 

F 3 instance 



70 ACTIONS LOCAL AND TRANSITORY. 

instance of the defendant after plea pleaded, even thoujr^ he afterwards obtain leave to with- 
draw his plea, and plead it de novo with a notice of set-ofF. Palmer v. Turner, Tidd's Pr. 528. 
Ed. 2.|| A judge's order for an imparlance is no bar to it. Blackstock v. Payne, Barnes, 487. 
Nor is the putting in a plea after a rule to shew cause any waver of it. Herbert v. Flower, 
Id. 492. (rf) Or undertake to give material evidence in the county where laid. Sid. 404. 
442. [But such undertaking is indispensable.] ||Guard v. Hodge, 10 East, 32. Clarke t. 
Reed, 1 N. R.310.|| [The want of it cannot be supplied by an affidavit that the cause of 
action arose where laid. French v. Coppinger, 1 H. Black. R. 216. The undertaking, how- 
ever, is satisfied by very slight local evidence, or by proof that the cause of action arose 
abroad. Watkins v. Towers, 2 Term R. 275. Gerard v. De Roebuck, 1 H. Black R 280.] 
||M'Ciare v. M'Keand, 2 Taunt. 197. The performance of it may indeed be dispensed with 
where the plea and issue joined are such as to render the evidence irrelevant; for it does not 
apply to collateral issues, but is confined to the matters stated in the declaration. Cockerell 
V. Chamberlayne, 1 Taunt. 518. Soulsby, Assignee, &c. v. Lea, 3 Taunt. 86. If the plaintiff' 
can shew that part of the cause of action arose in another county than that where originally 
laid, the nde for changing it will be discharged. Cailland v. Champion, 7 Term R. 205. 
Collins V. Jacob, 3 Bos. & Pull. 579. Hope v. Bennett, 2 New R. 397. But, where the cause 
of action substantially arose in a county at a great distance from that in which the venue was 
laid, and all the witnesses resided in that county ; the court changed the venue to it on the 
defendant's agreeing to admit a fact, which in point of form arose in the original county. 
Holmes V. Wainwright, 3 East, 329.|| [Evidence merely that the plaintiiTs witnesses reside 
in the county where he has laid the action is not sufficient. 2 Black. R. 1031. After the 
venue hath been changed, the court have refused to bring it back upon an affidavit that the 
witnesses live in Scotland, and will not come farther than Carlisle. Fogoe v. Gale, 1 Wils. 
162.] 

2 Mod. 215. But though the court, on application, seldom refuse to change 
Gilb. Hist. the venzie, yet there are cases in which the judges have refused; 
i^ R° ^^ where a peer of the realm brings an action of scandalum mag- 

954. 1 1* Mod. ^^°^^^* *h^ court will not change the venue, because a scandal 
9. 12 Mod. raised on a peer reflects on .him through the whole kingdom. 
J 21. 401. 420. Barnes, 343. 2 Stra. 807. 2 Ld. Raym, 1418. Andr. 198. Bamardist. K. B. 60. 

1 Lev. 56. S.P. For the king himself is party to the suit; but in ray Lord Shaftsbury\ case, 
who brought scandalum magnatum, and laid it in London, the venue was changed. Vent. 5«4. 
Q Jones, 192. But note that was by reason of the great influence he had in the city ; and the 
established doctrine is, that the venue cannot be changed in an action of scandtdum magnatum. 

2 Salk. 668. pi. 3. 1 Vern. 439. It was refused by B. R. in Ld. Sandwich and MiUer, in 
Eatter Term 1773. 

Vide head of A Serjeant at law, barrister, attorney, or other privileged 
Privilege. 2 person, whose attendance is necessary at Westminsta-'hall, may 
f^o^'Yg^^'^' ]^y ^^^ action in Middlesex, though the cause of action accrued 
2 Show. R. ^^ another county; and the court, on the usual affidavit, will not 
176. pi. 172. change the venue. 

242^. pi. 239. S. p. Though the plaintiff*, who was a barrister, had discontinued his practice 
for some time before. [But Quare of this ? On motion by Mr. Spelman to re-change the 
^ffi"r^ .*° ^Jiddlesex on the ground of his being a barrister, the court obliged him to make 
* ni^^v p **' ^^' ^P^^""^" ^^^ plaintiff" and Mr. Spelman the barrister were the same person. 
£ Black. R. 1067. 1 Black. R. 19, An attorney does not lose his privilege to change or 
retam the venue by residing in the country. 2 Black. R. 1065.] 

s^Ld'^Ra^ m ?"^' ^^ ^ privileged person be sued, and the action brought 

1053! Bisse against him in the right county, his privilege will not entitle him 
V. Harcourt. to have it tried in Middlesex. 

S Salk. 668. pi- 1. Andr. 381. 4 Burr. 2027- 3 Term R. 573. Contr. 2 Stra. 1049. Dolben J. 
remembered a cause where the venue was altered, though an attorney was plaintiff", because 
the matter arose, and all the witnesses lived, in remote parts. Carth. 126. So, where the 
plaintiff was an attorney, but had not declared in person, but by N. C. his attorney. Barnes, 
479. bo, where plaintiff" sued defendant by capias, and not by attachment of privilege. Pract. 
n^' ^ r,' '^l?* ^5P- * ^^** P""**^'- C. p. 132. So. where he sued by original. Barnes, 484. 
Rep. & Cai. Pract. C. P. I4fi. Pract. Reg. C. P. 420. 

nAnd 



(B^ In ivJiai Case^ tJie Court 'will cluinge lite Venue. 71 

g And if the privileged person lay his venue in London, or any 2 9alk. 668. 
other county than Middlesex, he has no privilege to retain it. "^ Taunt. 146. 

And the privilege does not extend to actions by an attorney Tidd. 6O8. 
in aider droit.\\ (^'^ ^^') 

So, if an attorney lays his action in London, the court will Vent. 47. Cas. 
change the venue on the usual affidavit ; for by not laying it in Temp. Holt, 

Middlesex (a), he seems regardless of his privilege, and is to be J\^V^ 1 

.J ,^ '' p r t) » (a) In order 

considered as a person at large. to prove the 

venue was not laid in Middlesex, a copy of the declaration was produced, by which it was 
said, it appeared the venzie was laid in London ; but the court said an affidavit ought to be 
annexed, that it may appear to be a true copy, and that they did not require this affidavit but 
in the case of an attorney. 

II The venue will not be changed to any of the four northern 3 Black. Com. 

counties, previously to the spring circuit, because the assizes there ^^'** ^ j 

are nolden only once a-year at the tune 01 the summer circuit. ^^^ p ' 

Nor will it be changed into a county palatine but on the praddely and 
terms of not assigning error on the want of an original ; and others v. Rip- 
therefore, in C. B., one of several defendants cannot be per- pon, 5 Taunt, 
mitted to remove it thither, because it is not competent to the ^ T:, ' .^"^^^*^ 
court in that case to lay the other defendants under those terms. |j ^^^ "7 Taunt. 

466. 4Maul. &S. 235. 

If material evidence may be given in two counties, the plaintiff ^ g^^ij, gg^ 
may elect to bring his action in which he pleases ; as, if A. draws pi, 4. Comb. 
a bill of exchange in Bristol, payable in London, the action 84. Lutw. 21s. 
accrues by the refusal to pay the money in London, and there- "^ ^°- ^"'" 
fore the plaintiff not obliged to change the venue. fioEa^t 34 

The like law in penal actions. 2 Term R. 238.] 

II So, where the venue had been changed by the defendant 2 Barn. & A. 
from London to Staffordshire, on the usual affidavit that the ^'8* 1 Chitt, 
cause of action arose in the latter county, and not elsewhere, the ' ** ' 
Court of King's Bench would not bring it back to London on an 
affidavit that the^cause of action arose partly in Staffordshire and 
partly in Worcestershire, and on the plaintiff's undertaking to 
give material evidence in one or other of those counties, par- 
ticularly as no special facts were stated to shew that the defend- 
ant's affidavit was not correct. And mere hardship and delay in 
being obliged to try a cause at Lancaster, when all the plaintifi''s 
witnesses reside in London, is no ground for bringing back the !^q, " 
venue to the latter place, unless the defendant be under terms 
to take short notice of trial in London, and has undertaken not 
to assign for error the want of an original writ.U 

So, where an assumpsit was brought for goods sold and de- Vent, 344* 
livered, and the action laid in London, and a motion was made 
to change the vemie upon affidavit that the sale was in Kent -, but 
it appearing that the delivery was in London, the court held that 
where the matter consists of two parts in several counties, the 
plaintiff shall have his election. 

So, an action against a lighterman for not delivering goods 2 Salk. 670. 
was laid in London, whither they were to be carried; it was jjl'/couKc'to 
moved to change the venue, because the damages and neglect change the 
were in Kent. Sed non allocatur ; for the neglect is transitory, venue ia aa 

F i and 



ri 



ACTIONS LOCAL AND TRANSITORY. 



action of 
escape; •per 
Holt C. J, 

10 East, 52.; 
and see 
2Chitt.R.417. 

Ibid, 



aiid not material where it was ; and the court will never change 
a venue for a carrier, which is the same case. 

II The venue may be changed in an action of crim. con. on the 
usual affidavit. 



So in an action of assault. 

6 Taunt. 754. "^^ ^^ ^® ^' ^' ^" ^ penal action. 
Scd vide 1 Sid. 287. 

4 Taunt. 729. So, in case for overturning the plaintiff in a stage coach, it 
may be changed to the county where the accident happened. 1| 
[But where the cause of action arises in two counties, the 



Shirley v. Col- 
lis, 2 6lack. R. 
940. 

2 Mod. 228. 
That the 
court will not 
change the 
venue in an 



court will not change it to a third.] 



If the action be grounded on a specialty, the court will not 
change the venue ; for not being dated at any particular place, it 
may be presumed to be omitted, that it may charge the defendant 
at any place. 

action of covenant. Lev. 307. ||See 2 Chitt. 419. 1 M'Clel. & Y. 212. Nor in assumpsit on 

an award. 2 Bos. & Pull. 353. 3 Barn. «& C. 9. 1 1. Or charter-party of affreightment. 7 Taunt. 

306. 1 Moo. 54. Sed vide. 4 Bing. 39. Unless some special ground be laid. See Tidd. 604. 

(9th edit.)|j 

[Nor will they change the venue in debt for rent on a parol 
demise of lands in one county, and the action laid in another. 

166. 

But where an action of debt for rent by the lessor against the 
original lessee was brought in London^ and the lands lay in 
Gloucestershire; on affidavit made that the defendant would 
plead a special plea, whereby the title of the estate would come 
in question, the court ordered the venue to be changed into 
Glouccstersh ire. 



Duplessis r. 
Chalk, Stra. 
878. Fitzgib 
Meritt's case, 
1 Freom. 260. 



Foster v. Tay- 
lor, \ Term R. 
781. 



8 East, 268. ; 
but see 
2 Chitt. R. 
419. 

Watt t. 
Daniel, 1 Bos. 
& Pull. 425. 



Barnes, 480. 



It is a general rule not to change the venue in actions upon 
specialties; yet it has been done upon certain terms imposed 
upon the defendant, on a suggestion that both the plaintiff's and 
defendant's witnesses resided in the county to which it was 
prayed it might be changed; but several similar applications 
have been rejected.] 

II In covenant on a lease for diverting water from the mill, a 
view being proper to be had the venue was changed to the 
county where the premises lay, though most of the plaintifPs 
witnesses resided in the county where the venue was laid. 

And in a late cat;e the Court of Common Pleas refused to 
change the venue in an action on a deed to the county where 
it was executed, on the ground of the defendant's witnesses 
living there; it not appearing from the pleadings to be necessary 
to produce many witnesses from that county, and there being 
reason to suppose that a fair trial could not be had there. 1| 

[The Court of Common Pleas refuse to change the vetiue in an 



485. 485. 487. action on a bill of exchange or promissory note (a), where the 
sBIaok.R. cause of action is confined to the bill or note only; but the 

practice 



ACTIONS QUI TAM. JS 

practice of the Court of King's Bench in this respect seems to be ,„., 

different. (6) ^ _ 4i.*SayR. 7. 

Andr. 63. HThey have however done it where the defendant's affidavit disclosed the number 
of witnesses, and shewed that a serious inconvenience would arise from bringing them into the 
county where the venue was laid : a mere statement that all the defendant's witnesses live in 
the county to which it is moved to change it will not suffice. Evans v. Weaver, 1 Bos, & 
Pull. 20. And where a view was necessary, they have done it, though most of the plaintiff's 
witnesses resided in the county where the venue was laid. Hodinott v. Cox, 8 East, 267.H 
(a) They consider these in the nature of specialties. \\{b) It should seem to be the same where 
the note is not negotiable, Orme v. Almay, cited in 2 Bos. & Pull. 5.95. And the practice of 
the Court of King's Bench seems now to be the same. See Tidd. 604. (9th edit.) ; and 2 Chitt. 
R. 418.11 

II It would seem that the courts will neither change the venue Whitburn v, 
in an action on an award, even though the declaration contains ^^p^il'^R^^' 
the common counts, nor oblige the plaintiff to undertake to 
confine his evidence to the count upon the award, |1 

[Though the plaintiff cannot regularly move to change the Stroud v. 
venue, yet he may do it in effect by moving to amend, and striking | "v' }^^:. 
out the name of the one county, and inserting that of the other ; ^ Hallet 
and as he may make this motion at any time, therefore where the 1 Wils. 175. 
7)emie has been changed by the defendant, the court will permit Bruckshaw v. 
him at any time to hrhm it back on the usual undertaking.] Hopkms, 

•^ » ^ -^ Cowp. 409. 



ACTIONS QUI TAM. 



A CTIONS qui tarn are (a) such as are given by acts of parlia- 3 Black. Com. 
ment, which impose a penalty, and create a forfeiture for I60. (a) It is 
the neglect of some duty, or commission of some crime, to be called some- 
recovered by action or information, at the suit of him who pro- actixm^'when^'^ 
secutes as well in the king's name as in his own. As most penal the penalty, or 
statutes direct, that the penalty may be recovered by action or part of it, is 

information, we will consider both matters together, and there- S^^en to anv 
r 1 II 1 one who will 

fore we shall shew, sue for the 

same. In these actions or informations, the party who prosecutes has, by commencing his suit, 
such an interest in the penalty, that the king cannot discharge or suspend the suit, as to the 
part the plaintiff is entitled to. Vide 2 Hawk. P. C. 592. and head of Prerogative. [Penal 
actions, though the judgment may in some cases be followed by legal disabilities, are considered 
as civil proceedings. 1 hey are founded upon the implied contract which every one is under 
by the fundamental constitution of government, to obey the directions of the legislature, 
and to pay the forfeiture incurred by his disobedience to such persons as the. law recjuires. 
3 Black. Com. 15P. Therefore the affirmation of a Quaker is admissible in them; Cowp. 
382. and a new trial may be had after a verdict for the defendant. Wilson v, Rastall, 4 Term 
R. 753.] 

(A) In what Cases they lie. 

(B) What ought to be the Form of them. 

^C) In what Courts they may be brought, and where 
laid. 



(D) Of 



74 ACTIONS QUI TAM. 

(D) Of the Proceedings and Pleadings in such Actions 
or Informations. ' 

(E) Of the Judgment on such Actions or Inform- 
tions. 

(F) In what Cases there shall be Costs. 

(G) Whether the Penalty of a Penal Statute may be 
compounded or granted over. 

Within what time the prosecution must be on a penal statute, 
vide head of " Limitation of Actions." 

(A) In what Cases they lie. 

Co Ent. 375. W/^HEREVER a statute prohibits a thing, as being an imme- 
Lutw. 133. diate offence against the public good in genera], under a 

138. Dyer, 95. certain penalty, and the penalty, or part of it, is {b) given to him 
lh\\K^ '^h^' ^^^ ^^^^ ^^^^ ^^' ^'' ^"y person may bring such action or inform- 
out such pe- ation, and lay his demand tain jpro domino rege quam pro seipso. 
nalty be given, no private person can sue, for the whole penalty goes to the king. 2 And. 127. 
2 Jones, 234. 2 Hawk. P, C. 377. [It hath been deterniinod, however, that where an informer 
entitled to no part of the penalty, sues for the king and himself, the information is not void, 
but the whole shall be adjudged to the king. Parker, 105. Hardr. 185. But an act which 

fives a remedy only to the party grieved, is not to be considered as a penal act ; Cas. Temp, 
lardw. 412. Andr. 1 1 5. S. C. Vin. Abr. tit. Robbery (U), p. 2. S. C. 2 Term R. 148. for the 
king cannot discharge it, or proceed in it after the death of the party. Wood's Inst. 535.] 

Vide 2 Hawk. go, where a statute prohibits or commands a thing, the doing 
aC Vs' ^^ omission whereof is both an immediate damage to the party, 
and also highly concerns the good of the public, the honour of 
the king, ^c. the party grieved may, and, as some say, ought to 
bring his action on such statute tarn pro domino rege quam pro 
seipso. especially if the king be entitled to a fine. 

(B) What ought to be the Form of them. 

Plow 79. * ' y^ ^^ agreed, that an action or information on a public statute 

4 Co. 48. Cro. need not recite the statute on which it is grounded ; whether 

Eliz. 236. the offence be such only because prohibited, or be an evil in its 

Cro. Car. 229. ^^^ nature; and whether it be prohibited by more than one sta- 

Show. 537. ^"^^> ^^ by one only ; for the judges are bound ex officio to take 

2 Hawk. P.C. notice of all public statutes. 

C. 25. § 100. 

For this vide But, if the prosecutor take upon him to recite the statute, and 

^^^ & loi "^^^^'"'^lly vai'y from a substantial part thereof (ff), this is fatal, 

H(a) Not being because it does not judicially appear to the court that there is such 

bound to re- a foundation for the prosecution, as that whereon it is expressly 

cite the sta- grounded. 

lute, a literal 

variance will be fatal. Dougl. 97. Sed vide 9 G* 4. c. 15. and tit. Pleas and Pleading (B).!| 

But, 



(B) What ought to be tlie Form of tliem. 



7.5 



C. 26. § 20. 
(fl) The usual 
It is the safest 

Vide Hawk. 
P.C. C. 26. 



But, if an information contain several offences against a statute, Cro. Jac 104. 
and be well laid as to some, and defective as to others, the informer ^^^' ^'"°* ^ ' 
may have judgment for v^^hat is well laid ; as, where the words of 
the statute are fully pursued in the description of some of the 
offences, and not of others ; or, where the time is in part certain, 
and in part uncertain. 

Also, an action or information qui tarn need not conclude contra 2 Hawk. P. C. 
pacem^ or m conteviptum domini regis ; as an indictment must. c. 26. § is. 

He who brings an action on a penal statute, which gives one Jones, 26i. 
moiety of the forfeiture to the king, and the other to the informer, Cro. Car. 256. 
may either have a writ against the defendant quod reddat domino Plow. 77. 
regi e/ A. B. qui tarn, Sfc. quas eis debet," or quod reddat A. B. qui ^J^^^ ^ ' 
tarn, Sfc, quas ei debet ; and in either case the writ is well pursued Dal. 66. 
by a declaration in the name of the plaintiff only. 

But it seems doubtful whether there be any necessity that QbioEre^ Vide 
either the writ or count, in any such action, do express that it 2 Hawk. P.C. 
is brought by or for the king as well as the party, (a) 

form of declaring is, that the party sues 'as well for the king as for himself, 
method, and perhaps is necessary. 

But it seems agreed, that every information must be in this 
form, viz. that the informer tam po domino rege quam pro seipso . , , 

sequitu?; even where it is brought upon a statute which gives one other autho- 
third of the penalty to a third person. But there is great variety rities there 
in the form of such informations in other respects ; for sometimes cited, 
they say, that the action accrues to the informer, to demand the 
forfeiture for the king and himself; sometimes that it accrues to 
the king and to the informer ; sometimes that it accrues to the 
king and to the informer and to J. S. viz. where it is divided into 
three parts ; sometimes they have no clause at all of this kind ; 
sometimes a process is prayed to bring in the defendant to answer 
the informer ; sometimes to answer as well the king as the in- 
former ; and sometimes to answer concerning the premises, with- 
out saying to whom. 

Such information may demand what is due to the informer, 2 Hawk. P. C. 
without mentioning what is due to the king. Also, if the quan- ^- 26. § 20. 
tum depend on what shall be found by the jury, a blank (A) may thi blank'* i? 
be left for the sum ; but if it demand more or less for the party it would not 
than his due (c), it is insufficient as to him ; but even in such case be bad ? 

it may be sufficient as to the king's share. (^) !^°^- ^'^^• 

° Bull. Ni. 

Pri. 196. 

If the action be popular, i, e. such as any person may bring, Bro. Action 
it may conclude ad grave damnumt without adding, of the plaintiff; ^^P"'^' ^' 
because every offence, for which such action is brought, is sup- ^ 26 21 ^ ^ 
posed to be a general grievance to every body. 

It is said that the fact is sufficiently alleged after a qjiod aim 
in an action on a statute, but not in an information, (d) 

rule will hold universally ? And if it must rather depend on the particular circumstances of 
each case ? ||See Carth. 216. Pleas arid Pleading (B).|| 

Where the penalty is given for continuing such a practice for Lutw. I62. 

a cer- 



Show. 337. 
{d)Qu. If this 



70 



ACTIONS QUI TAM. 



(a) The King V. a certain time, or for not doing such an act within such a time, 

1 aylor, Lent ^^^ information must be very particular in bringing the offence 
assizes for ... , . ., , .•'v'^ " o 

Stirry 1776. withm the time prescribed, (a) 

before Mr. J, Blachlone, an information aaainst the defendant for following the business of a 
tanner, not having served an apprenticeship. The evidence did not specify the time as laid 
in the information ; and the prosecutor having closed his case, the judge refused to let him 
supply the defect; it being a prosecution that was not to be encouraged; and directed the jury 
to acquit the defendant. 

2 Hawk. P. C. By the 18 Eliz. cap. 5. (b) None shall pursue against any 
c.26. $22. person- on a pejial statute^ but by 'way of information^ or original 

action^ except where the penalty is limited to a certain person^ &c. ; 
yet popular actions in the King's Bench or Exchequer seem not 
within the meaning of this statute ; for it doth not restrain the 
suit to original writs, but only to original actions, and such 
actions by bill are properly original ones in the courts in which 
they are commenced ; and therefore it seems a reasonable con- 
struction, that the meaning of the statute was only to restrain 
suits commenced in inferior courts, and afterwards removed into 
superior. 



{hi) Made per- 
petual by 
27 Eliz. c. 10 
and 51 Eliz. 
€.5. [The 
latter cases 
support this 
doctrine. 
See Leigh 
V. Kent, 
3 Term R. 
565. n. a.] 



51 Eliz. c. 5. 
§2. 



Com. Dig. tit. 
Action (N), 
B. N. P. 195. 

3 Term R. 
3.58. 2 Bos. & 
Pull. 581. 

4 East, 385. 9 

Whitehead 
V. Wynn, 

5 M. & S. 427. 

Bun. 23C. 
261. Parker, 
182. 5 Anst. 
871. 



21 Ja. I. C.4. 



(C) In what Courts tliey may be brought, and 
where laid. 

|[T>Y 31 Eliz. c. 5. §2. in any declaration or information tlie 
offence against any penal statute shall not be laid to be 
done in any other county but where the contract or other matter 
alleged to be the offence was in truth done ; and every defendant 
in such action or information may traverse and allege that the 
offence was not committed in the county where it is alleged, 
which being tried for the defendant, or if the plaintiff be there- 
upon nonsuit, then the plaintiff shall be barred in that action or 
information. 

This statute is still in force, and is held to extend to all actions 
or informations brought by common informers upon penal sta- 
tutes, 'whether made before or after 31 Eliz. And hence the 
venue in all such actions and informations must be laid in the 
county where the offence was committed. 
East, 296. 5 Taunt. 754. 3 Maul. & S. 429. 

This statute extends to offences of omission as well as com- 
mission. 

There is an exception, however, in the statute that it shall 
not extend to any such officers of record as had in respect of 
their offices theretofore lawfully used to exhibit informations 
and sue upon penal laws, which exception extends to inform- 
ations by the Attorney-General in the Court of Exchequer. || 

By the statute 21 Ja. 1. cap. 4. all offences against penal sta- 
tutes, for which any common informer may ground any popular 
action, bill, plaint, suit, or information, before justices of assize, 
or nisi prius^ or of general gaol-delivery, or of oyer^ Sfc. or of 
peace, Sfc. (except offences concerning recusancy or mainte- 
nance, 



(C) In xvhat Courts they may be hroitght, and wJiere laid. 77 

nance, or the king's customs, or transporting gold, or silver, or 
munition, or wool, or leather, Sic) shall be commenced, sued, pro- 
secuted, tried, recovered, and determined by way of action, plaint, 
bill, information, or indictment, before the justices of assize, of 
nisiprms, of oj/«-, SfC. or of gaol-delivery, or before justices of 
peace, of every county, city, borough or town corporate, or 
liberty, having power to enquire of, hear, and determine the same, 
within this realm of England and dominion of Wales, wherein 
such offences shall be committed, in any of the courts, places of 
judicature, or liberties aforesaid respectively, only at the choice 
of the parties which shall commence suit or prosecute for the 
same, and not elsewhere, save only in the said counties or places 
usual for those counties, or any of them ; and the like process 
in every poj)ular action, bill, plaint, information, or suit, shall 
be as in actions of trespass vl et armis at common law ; and all 
informations, actions, bills, plaints, and suits whatsoever, either 
by the attorney-general, or by any other officer whatsoever, in 
any of the courts of Westminster, for or concerning any the 
offences aforesaid, shall be void. 

And in all suits on penal statutes, the offence shall be laid in 
the county where it was in truth committed; and if, on the 
general issue, the offence be not proved in the same county in 
which it is laid, the defendant shall be found not guilty. 

And no officer shall receive, file, or enter of record, any 
information, bill, plaint, count, or declaration, on the said sta- 
tutes, which by this act are appointed to be heard and deter- , 
mined in their proper counties, till the informer or relator hath wThissec- 
laken an oath before a judge of the court, that the offence was statute seems 
not committed in any other county than where, by the inform- now to be dis- 
alion, Sj-c. the same is supposed to have been committed, S^-c. the re<;arded. Sea 
same oath to be there entered of record. («) tnjra. 

In the construction of this statute it hath been holden, that no 2 Hawk. P. C. 
action of debt or information, or other suit whatever (6), can be '^•^e. §54. 
brought on any penal statute made before 21 Jac. 1. in any of the '^^) f^f'^V^'^^,^' 
courts 01 Westminster-kall, tor an oiience not excepted by the 4(55. 5 Mod. 
statute, and for which the offender may be prosecuted in the 425. 2 Lev. 
country (c), unless such offence shall be committed in the same 204. 5 Inst, 
county in which such court shall sit. And as to the objection, that ^^^; v^'L,"?, 
by this restraint or suits on penal statutes to the said courts, tlie Lev. 249. 
offence would become dispunishable by the offender's removing 5 Lev. 71. 
from the county ; it may be (^/) answered, that he may be sued 2Keb.4oi. 
to an outlawry in the same manner as in an action of trespass. ^^q' ^^^ "^P^; 

Vent. 304. 2 Lev. 204. Latch. 192. Sid. 359. Ld. Raym. 370. Stra. 413. Wille'sR.654, 
(«5j Jon. 193. {d) Salk. 573. pi. 24. Salk. 372. pi. 13. 

IjThat the statute does not extend to offences created by j g.^2|^ ^^^ 
subsequent statutes. Bull. N. P. 

195. 3 Maul & S. 458. 

Neither this statute nor the 31 Eliz. c. 5. extends to actions by i Show. 354. 
tlie party grieved. || ^"^'' ^- P* 

That where a subsequent statute gives an action of debt, or ^wt per Holly 

anv 



78 ACTIONS QUI TAM. 

it conies any other remedy, for the recovery of a penalty in any court of. 

within the record generally, it so far implietlly repeals the restraint of 
^['•"tute" ^ ^^ ^^'^' ^•' ^"^' consequently, leaves the informer at his liberty 
[(a) The king to sue in the courts of IVestminster-hall. (a) 
V. Gaul. 

1 Salk. 375. Ld. Ra)ma. 370. S. C. Hick's case. 1 Salk. 373, But this was merely the 
private opinion oi Holt ; and the cases here referred to have been confirmed by a subsequent 
case of Harris v. Reyney, B. R.P. 1734, cited in Parker, 186.; .and the reason of the judg- 
ment, as there stated, is, that the preamble speaks of offences against divers and sundry penal 
laws and statutes of the reahn ; and the enacting clause of or concerning offences committed 
or to be committed against any penal statute, must relate to a statute in being, for there 
can be no offence against a statute which does not exist. However, the offence must be laid 
within the proper county. I Salk. 573.] 

Cro. Car. 119. That the statute gives no jurisdiction to the courts therein 
Lit. Rep. 163. mentioned over any offences in relation to which they had none 
Hut. 98. Vent, before ; and, therefore, that suits for such offences must be 

?,\^ .'"•^\^'" brought into the courts oi' fVesttninster in the same manner as 
(b) It IS only , r /j:\ 

where there is before. (6) 

a concurrency of jurisdiction in the superior and inferior courts, both as to the subject viatler^ 
and as to the mode of proceeding, that the statute excludes the jurisdiction of the former. 
Therefore a suit may be maintained in the courts at Westminster for the recovery of penalties 
incurred against the statute of 1 Jac. 1. c. 22. notwithstanding a subsequent clause of that 
statute, which authorizes justices of assize, of gaol-delivery, and of the peace, to enquire of the 
premises, and to hear and determine the same ; the mode of proceeding under that clause 
being merely by indictment or presentment. Shipman v. Henbest, 4 Term R. 109.] iJSee 

1 Will. Saund, 312. a. b.jl 

Keb. 106. That the statute hinders not the removal of any cause into 

Jones, 195. j.j^g King's Bench by certiorarL after which it may be either tried, -l 

2 Hawk. P.C. ^, • ^u 4. u • • • / \ \ 
c 26. §57. there or in the county by mstprius. (c) •' 

Rex. V. Martel. Bull. Ni. Pri. 196. 4th edit, (c) [It is now settled, though formerly doubted, 
that an appeal lies from the King's Bench to the Exchequer Chamber in a qui tarn action of 
debt. This question was determined by the Exchequer Chamber, the courts of King's Bench 
and Chancery having previously refused to entertain it. Lloyd v. Skutt. Dougl. 553. n.] 

2 Andr. 127. Also, where a statute limits suits by an informer qui tarn to 

2 H k P^ C ^^^^^' courts, yet any one may, by construction of law, exhibit 
c. 26. §25. * ^" information in the Exchequer for the whole penalty for the 
Parker, 182. use of the king. 

Cro. Car. 316. That on the last clause of the statute it cannot be assigned 
vide 4 Inst. for error, that an information, S^c. was filed without such pre- : 
193 B t^' vious oath as the statute requires, for it was only directory to the 
qu(^re Whe- officer, [d) 

ther for want of such an oath, the court will not, on motion, set aside the process. Salk. 367. 
pi. 19. Ld. Raym. 426. Carth. 503. [(rf) This oath is not necessary where the action is in 
the superior courts, the statute not extending to any actions which may be brought in those 
courts. Leigh qui tarn v. Kent, 3 Term R. 562. Balls qui tarn v. Atwood, 1 H. Black R. 546.] 

Show. 354. That no suit by a party grieved is within the restraint of the 

statute. 
Gates qui tarn [Where an offence is created by a statute under a penalty, the 
v.^night,^^^ penalty may be sued for in the superior courts; for the jurisdic- 
tion of those courts is not to be taken away but by express words 
or necessary implication. But the statute of 25 G. 3. c. 51. 
having imposed penalties of 50/. and of 10/. and having enacted 
that the former should be sued for in any of the courts of West- 
minster, but having provided that it should be lawful for justices 

of 



3 Term R. 442. 



(D) Proceedings and Pleadings in such Actions^ cj-c, 79 

of the peace, S^e. to hear and determine the latter, with a power 
to mitigate the penalties ; it was holden, that such proviso 
ousted the jurisdiction of the superior courts as to the penalties 
of 10/.] 

(D) Of the Proceedings and Pleadings in such Actions 
and Informations. 

"OY the 18 EHz. c. 5. every informer on any penal statute shall ig Eliz. c. 5. 
exhibit his suit in proper person, and pursue the same either 2 Hawk. P. C. 

by himself, or by his attorney in court, and shall not use any E"^?;,^^"l' 
•\ ^ I \ [(«) rherefore 

deputy, (a) aa infant can- 

not be a common informer, for he must sue by guardian ; Maggs v. Ellis, M. 25 G. 2. Bull. 
Ni. Pri. 196. (4th edit.) and he cannot be an attorney, because he must be sworn. March 92.J 

Any infoi'mer qui tarn {b), or plaintiff in a popular action (c), ny. ^^ j j^j 
may be nonsuit, and thereby determine the suit, as to himself 139. Bro. 
at least ; and though the king cannot be nonsuit, the attorney- Nonsuit, 68. 
general may enter a nolle proseqtii to an information by the king (^) """o- ^^n- 

only. Sid. 420. Salk. 

21. pi. 11. [Moulton qui tarn v. Bingham. 2 Term R. 51 1. n. a. But the act of 14 G. 2. c. 17. 
for judgment as in case of a nonsuit, does not extend to an information qui tarn for the king 
and partV" Parker, 92.] |[It extends to qui tarn actions as well as others. Barnes, 315. 
1 Wils. 325. 7 Term R. 178. 1 East, 554.1| 

[Where the moiety of a penalty is given by a statute to the 4 Term R. 
treasurer of a county, riding, or division, the word division does K.B. 224.459. 
not apply to any small districts, or to any arbitrary divisions of /t 

the county made for the convenience of the magistrates, and to *^ 

which separate treasurers are appointed, but must be taken in 
its legal sense, and therefore an action cannot be supported in 
the name of the treasurer of such districts, Sfc.'] 

By the 29 Eliz. c. 5. and 31 Eliz. c. 10. if any natural-born 29 Eliz. c. 5. 
subject or denizen, shall be sued on any penal law in the Queeris ^"'^ ^^ ^''** 
Bench, Common Pleas, or the Exchequer, where he is bailable, or ^' ^°' 
by form of the court may appear by attorney, in every such case 
he may, at the time contained in the first process, appear by 
attorney, and not be urged to personal appearance, or to put in 
bail. 

If the defendant plead a special plea, he must take care to set Roll. Ren. 49. 

it forth with all convenient certainty, and to answer the whole 134. Bridg. 

time laid in the information ; and if he plead the general issue, * ' ^- that he 

he must depend upon it, for he cannot plead together with it a f?""°* ^^S^ 

• ii»« ^ nis Itiw or t(iK6 

special plea, either to the whole, or to part of the charge, {a) advantaoe of 

a protection 2 Hawk. P. C. 390. [(d) The stat. 4 Ann. c. 16. does not extend to penal actions ; 
see § 7. 2 Stra. 1044. 2 Wils. 21. 4 Term R. K. B. 701. |ll Bos. & Pull. 222. || A qui tam 
information cannot be quashed upon motion. Stra. 953.] 

If the defendant plead nil debet, it is safest to say expressly Co. Ent. 165. 
that he owes nothing to the informer, nor to the king ; for if he ^°'^' ^^J* 
only plead that he owes nothing to the informer, it may be g Lev. 375. 
objected that the whole declaration is not answered. Vide Cro. 

Car. 10, 11. 

If there be more than one defendant, they ought not to plead 2 Hawk. P.C. 



80 ACTIONS QUI TAM. 

jointly, that they are not guilty, but severally, that neither they 

nor any of them are guihy, S,-c. 
jj^jj 218 tit seems that either nil debet^ or not guilty, is a good 

lTerniR.'462. plea.] 
||See 5 Bos. & Pull. lll.|| 

2 Hawk. P. C. ^ If the suit be grounded on the breach of a statute appearing 
c. 26. § 6S. ^y matter of lecord, //// debet is not a good plea. 
Cro. Eliz. 261. Wherever a suit on a penal statute may be said to be {a) de- 
Roll. Rep. 49- pending, it may be pleaded in bar of a subsequent prosecution, 
134. Hob. 209. ijgij^g expressly averred to be for the same offence, as it may, 
the sutt shall though it be laid on a day different from that in the former ; and 
be said to be it is said, that a mistake in such a plea of the day whereon such 
pending, vide prior suit was commenced, will not be fatal on the issue of nul 
2 Hawk. P. C. ^1^^ record, if it appear in truth to have been prior, 4^c. and if 
and qucBre two informations be exhibited on the same day, they may mu- 
Whetherfrom tually abate one another, because there is no priority to attach 
the time of the i\iq right of suit in one informer more than in the other, 
purchase or 

return of the writ. Salk. 89. From the time of the purchase of the writ [The day of suing 
it forth is the commencement of the suit. 3 Burr. 1425. Combe v. Pitt. IJNotice of action 
has been held no commencement of it. 2 Black. R. 781.|| The plea must aver the priority of 
the suit, and the very hour of its commencement may be shewn, if necessary. Jackson v. 
Gisling, Stra. 1169. 5 Burr. 1425.] 

Bredenquiiam [The record of a recovery in another action cannot be given 
V. Harman, j^j evidence on nil debet; for if it be pleaded, the plaintiflf may 
Bull Ni Pri. ^^P^y ^'"^ ^^^^ record, or that the recovery was by fraud to defeat 
197. (4th ed.) a real prosecutor, which he cannot be prepared to shew upon the 
general issue. 

If the defendant plead a prior recovery, and the plaintiff reply 
11(a) This sta- per Jraudem, and such recovery be found to be fraudulent, 

tute does not ^j^g defendant is liable to two years' imprisonment by 4 H. 7. 

extend to _ , » •' '■ •' 

cases where ^' ^^•-1 \^} 

the penalty is given to the party grieved. 1 Salk. 30. 2 Hawk. P. C. 279.|| 

2 Roll. Abr. I^ the defendant be within the proviso of a penal statute, he may 

683. Vide take advantage of such proviso on the general fssue, in a suit on 
2 Hawk. P. C. such statute ; but it hath been holden (even since the statute of 
c. 26. ^69. 22 j^^ ^ P^ ^ \ ^|^g|. jf j^g have matter in his discharo;e dependinc: 
that he may , ' , i i • -11°' ° 

take advantage Oil a subsequent statute, he must plead it specially. 

of it by virtue of the statute, without pleading it specially ; but as to those matters to which 
the statute doth not extend, qucere. |jlf the same act that imposes the penalty contains the 
proviso of exemption, it is clear this may be shewn on the general issue. 4 Burr. 2284. 2469. 
And it seems the same if a subsequent act contain the exempting clause. 1 Black. 250. ; and 
see 3 Camp. 222.1| [The defendant cannot avail himself under the general issue of any 
matter that goes to the jurisdiction of the Court. 4 Term R. 109.] 

2 Hawk. P. C. As to replications to special pleas to informations qtd tarn in the 
^' ' ' courts of Westminster-hall, they are properly made in the name of 

the attorney-general only; and such replications in suits at assizes 
are proper in the name of the clerk of assize only : also, replica- 
tions to general issues, on such informations in the King's Bench 
or Exchequer, may be in the name of the attorney-general only ; 
but, generally, the plaintiff only replies in actions qui tarn; and , 
a demurrer to a plea in bar to an information qui tarn in the 
informer's name only has been received. 

Where- 



(E) Of the Judgment on such Actions or Informations ^ 



81 



Wherever a plaintiff may declare tam pro domino rege quam 2 Hawk. P.C. 
pro seipso, he may continue the same form of words both In the c. 26. § 73. 
joining of issue and in the venire; but is not bound to do it unless ^"^ Hawkins 
the king be entided to part of the penalty, (a) qulTe^Whe- 

ther he be bound to do it in this case ; for there are precedents to the contrary. The usual 
form in the plaintiff's replication is, " and the plaintiff ivho sues as aforesaid, doth so likewise, 
" ^c." where defendant offers issue. If the plaintiff^ then, " and of this the said A. who sues 
" as aforesaid, puts hiviselfon the country, Sfc." 

Where several persons are jointly charged for an offence against 2 Roll. Abr. 
a statute, which in its own nature may be committed by a single Ig 59 ^"^* 
person, without the concurrence of any other, some of them may 
be acquitted and others found guilty; for though the words of the 
information be joint, yet in judgment of law the charge is several 
against each defendant; but, if one only be informed against, as 
having offended oftener, or, in a higher degree than is proved, 
as for having been absent from church ten months, where he has 
been absent but eight; or for having ingrossed 1000 quarters of 
wheat, where he has ingrossed but 100; he maybe found guilty 
as to what is proved, and not guilty as to the residue, for such 
offences are in the nature of trespasses, which it is sufficient to 
prove for any part; but, if the offence consist in making a con- 
tract contrary to the purview of a statute, as in the case of usury, 
it must be proved as it is laid. 

[Where an offence made penal by statute is in its nature single, Rex v. Clarke, 
and cannot be severed, there, the penalty shall be only single, Cowp. 610. 
though several persons may join in committing the offence. But, m° 455^^^' 
where the offence is in its nature several, there every offender ^oy^ 52. 
is separately liable to the penalty. Thus, impounding a distress |[See Reeve r. 
in a wrong place, against the statute of 1 & 2 P. & M. c. 1 2. 
though done by many, is but one act, and shall be satisfied by 
one forfeiture. So, under the statute 5 Ann. c. 14. killing a 
hare, though several be concerned in it, is but one offence. 
But the offence against the 8 Geo. 1. c. 18. § 25. of obstructing 
a custom-house officer in the execution of his duty, is several; 
and every offender is separately liable to the penalties which the 
act imposes.] 

II The plaintiff in declaring on a penal statute must expressly Spieres v. Par- 
negative the exceptions or exemptions contained in the enacting ^^'"» ^ ^^"" ^* 
clause which gives the penalty, and also those contained in any pratten ^^ ^' 
other clause to which the enacting clause refers; but not those 6 Term R. 559. 
contained in a subsequent proviso, to which the enacting clause Steel v. Smith, 
does not refer, nor those contained in a subsequent statute : in ^ ^^"• 
these last cases it is for the defendant to bring himself within the 
exempting proviso. || 



Pool, 4 Barn. 
& C. 155.|l 



&A. 



(E) Of the Judgment on such Actions or Inform- 
ations. 

^^^HERE by statute the offender is to forfeit such a sum, to Andr. 139, 
be divided into three parts, whereof one shall go to the ^tile, 329. 
king, one to the informer, and the other to the poor, and to be 
Vol. I. G com- 



Roll. Abr. 
102. 2 Keb. 



82 



ACTIONS QUI TAM. 



820. 2 Andr. 
128. Parker, 
105. Where a 
statute distri> 
buting one 
moiety of the 



committed if he do not pay it within such a time, the judgment 
may be general, that the king and informer shall recover the 
whole, without mentioning how it shall be distributed, or that 
the party be committed for nonpayment. But, if it mention 
only that the informer shall recover, without saying any thing 
penalty to the of the king, it is erroneous ; yet, if on such an information, as 
the^'otheir to ^^ ^^ ^^^^' informer appear to have no right to any part, but 
the poor, di- the king ought to have the whole, and the judgment be, that 
rects that the the defendant forfeit the whole, and that the king shall have one 
informer shall part, and the informer another, Sfc. it is erroneous only as to 
[udffnfent^that '^"^^ ^^^^ clause, which distributes the forfeiture, but shall stand 
the informer for the first clause, that the defendant shall forfeit the whole, {a) 
Also, if there be no clause at all concerning the forfeiture, in a 
conviction on a penal statute, but only a judgment quod convicius 
est, it is sufficient, for the forfeiture is implied. 

(a) 2 Hawk. P. C. c. 26. § 76. Adjudged Mich. 3 G. 1. [Wherever the act expresses the 
amount of the penalty, or leaves it to the discretion of the magistrate, there must be a 
judgment of forfeiture as well as a conviction. Rex v. Hawks, Stra. 8 58. Fitzgib. 1 24. Barnard. 
K. B. 212. But where the act, as 9 Ann. c. 14. says, " That the offender shall forfeit five times 
" the value" &c. all the judgment the court can give is, quod convictus est, and a new action 
must be brought upon that judgment for the forfeiture. In recusancy there is no other judg- 
ment. Rex V. Luckup, Stra. 1048. 



and the poor 
shall recover 
is good. 
4 Burr. 2018. 



4 Burr. 2018. 
Frederick v. 
Lookup, qui 
tarn. 

5 Term R. 448. 



Willan V. 

Taylor, 

7 Barn. & C. 

111. 



2 Keb. 781. 
Roll. Abr. 574. 
Lutw. 200. 
Vent. 133. 
Salk. 206. pi. 
4 cont. Moor, 
65. 3 Lev. 374. 
2 Inst. 288. 

2 Hawk. P. C. 
c. 26. § 57. 
Vide the au- 



[A judgment in a popular action may be affirmed as to one 
part, and reversed as to the other ; as, where damages and costs 
were given on 9 Ann. c. 14., it was reversed as to the damages 
and costs, and affirmed as to the debt. 

If the jury find a general verdict with one penalty for the 
plaintifi^, and he apply it to one count, he shall not be permitted 
afterwards to apply it to another count, though the former were 
bad in law, and the evidence would have warranted the applica- 
tion of it to any other count.] 

II Where the plaintiff in an action on the 9 Ann. c. 14. §2. 
recovered treble the value of money lost at play, the loser not 
having sued within the time prescribed by the statute, and a 
writ of error was broight by the defendant, and judgment was 
affirmed without costs ; it was held, that the poor of the parish 
where the offence was committed were entitled to one moiety of 
the sum recovered, without deducting costs. 1| 

(F) In what Cases there shall be Costs. 

A N informer on a popular statute shall in no case whatsoever 
have his costs, unless they be expressly given him by such 
statute, for the common law gives costs in no cases; and the 
statute of Gloucester gives the demandant costs only in cases 
wherein he shall recover his damages, which supposes some 
damage to have been done to the demandant in particular, which 
cannot be said in any popular action. 

But, wherever a statute gives a certain penalty to the party 
grieved, he is entitled to his costs by the statute of Glaucesttr, '_ 
which gives the demandant his costs in all cases wherein lie 

shall 



I 



(F) In what Cases tfhere sJmH be Costs, 83 

shall recover his damages (a) ; for otherwise it would be in rain thoritiee 

for him to sue, since in many cases the costs would exceed the '^PI^' „ -.' 
^j. ^ 1 Term R. 71« 

P*^nalty. lliH.BIack.lO. 

7 Term R.267.|| (a)Also, wherea statute, introductive of a new law, gives a remedy in a point 
not remediable at the common law, but no certain penalty, the jury may consider the costs, so 
as to give damages accordingly, 2 Hawk. P. C. ibid. 

By the 18 Eliz. c. 5. made perpetual by 27 Eliz. c. 10. if (A) Extends 
any informer or plaintiff (Z*), on a penal statute, shall willingly onlytoacora- 
I delay his suit, or discontinue, or be nonsuit, or shall have the ^d^notTcra*^* 
I trial or matter passed against himself therein by verdict or judg- party grieved ; 
I ment of law, he shall pay to the defendant his costs, charges, yet if a party 
' and damaijes, to be assigned by the court in which the suit shall g^iered brings 
I i-i. ? J / \ his action, and 

be attempted, ^r. (c) such action 

be for any oiFcnce or wrong personal, immediately supposed to be done to the plaintiflfj or 

plaintiffs; or whatsoever the nature of the action may be, if the plaintiff might have costs in 

case judgment should be given for him, he shall pay them on a nonsuit, or verdict against 

him, by virtue of 25 H. 8. c. 15. and 4 Jac. 1. c. 3. Vide 2 Hawk. P. C- c. 26. § 59. and the 

\ authorities there cited. JlMayor of Plymouth v. Werring, Willes, 440. College of Physicians 

;! v. Harrison, 9 Barn. & C. 526. acc.|| [For this reason the costs of a nonsuit were awarded to 

( the defendant in an action by the party grieved, on the statute of 9 G. 1. c. 22. Greetham v. 

I the Inhabitants of the Hundred of Thrale, 3 Burr. 1725. That the plaintiff is in such case 

I entitled to costs, see Witham v. Hill, 2 Wills. 91. and Jackson v. the Inhabitants of Calesworth, 

I 1 Term R. 71. ||6 Term R. 355. 7 Term R. 267.1| though denied by Aston J. in giving judg- 

: ment in the case of Wilkinson qui tarn v. Allott, Cowp. 366.] (c) And it is no objection 

■• against paying the costs, that the court had no jurisdiction of the cause, or that the statute on 

I which it is grounded is discontinued. 2 Keb. 106. Vide Hutt. 35. 

[There is a proviso in this act, that it shall not extend to any 2 Ld. Raym. 

■ officers who are used to exhibit informations; but it must appear l^-^V, •}. 

on record that they are such officers, else they will be considered 117'xerm R.* 

as common informers, and affidavits to the contrary will not be 367.|| 

admitted. 

If a prosecutor qui tarn for killing game does not reply, Law qui tarn 

defendant shall have costs, for this statute extends to informers T'wn"^}L*~ 
1 X , , T 1 Wills. 177, 

on penal statutes.] Hit extends to 

subsequent statutes. Willes, 392. 440.|| 
II It does not extend to give costs to one of several defendants, 1 Carr. & P. 

who has been acquitted where a verdict has been given against ^^^' '**^* 

his co-defendants. II 

[A prosecutor not going on to trial shall pay costs. Cas. Temp. 

3 Burr. 1304. 
In an action qui tarn on the 5 Eliz. c. 4-. the plaintiff shall pay „. . 

^^^^^' V.Stevens, 

Ld. Raym. 1333. Jeynes qui tarn v. Stephenson, Barnes, 124. 

I Where there is any reason to suspect that the defendant may Parker qui tain 

. lose his costs, if the plaintiff should fail in the suit, he will be I'r^^^'u^^l^' 

5 permitted to pay the issue money into court to abide the event, pjgjj ^^^ "^^^^ ' 

5 Whether the plaintiff can in such case be compelled to give v.Carran,2H. 

^ security for the costs, is a point not yet settled, there being a Black. 27. Ficfe 

j difference of opinion in this respect between the courts of West- f**; /^.f *' , 

yl minster-hall: the Courts of Common Pleas and Exchequer S.'i'g" 

r^ holding the negative, whilst the affirmative is maintained by die (9th edit.)|| 

^j Court of King's Bench. 

nl G 2 The 



English qui 
tain V. Cox, 
Ck)wp. 522. 



ACTIONS QUI TAM. 

The courts have refused to stay proceedings in an action for 
usury, till the costs of a nonpros in a former action by a diifereiit 
plaintiff against the same defendant were paid.] 

II See the next head (G).|| 



isEliz. c. 5. 
(a) Extends 
only to com- 
mon infor- 
mers. [But it 
extends 
equally to 
those who sue 
for the whole 
penalty, as to 
qui tarn infor- 
mers. Cowp. 
3G6.] 2 Hawk. 
P. C. c. 26. 
§ 77. {b) Ex- 
tends as well 
to subsequent 
penal statutes 
as to those 
which were in being when it was made, 



4 H. 7. c. 20. 



(G) Whether the Penalty of a Penal Statute may be 
compounded or granted over. 

"DY the 18 Eliz. c. 5. no informer or plaintiff shall compound 
or agree with any that shall offeuil(^), or sliall be surmised 
to offend against any penal statute (i), for such offence com- 
mitted, or pretended to be committed, but after answer made in 
court to the suit, nor after answer, but by consent of the court 
in which the information or suit shall be depending; on pain, 
that whoever shall offend contrary to the true intent of this 
statute, or shall by colour or pretence of process, or without 
process, on colour of any offence against any penal law, make 
any composition, or take any money, reward, or promise of 
reward, for himself, or to the use of any other, without consent 
of some of his majesty's courts at Westminster^ and shall be 
thereof convict, shall stand in the pillory, S,-c. by the space of 
two hours, and shall be disabled to sue on any popular or penal 
statute, and shall forfeit 10/. S^c. 

Hutt. 35. Also, it extends to the compounding of 
suits commenced in courts which have no jurisdiction, as much as if they had a jurisdiction. 
K^b. 106. Sid. 311. 

II By 4 Hen. 7. c. 20. actions popular prosecuted by collusion 
shall be no bar to those which are prosecuted with good faith, 
and the defendant being lawfully condemned or attainted of covin 
or collusion shall suffer imprisonment for two years. 1| 

By the 21 Jac. 1. c. 3. it is declared, That all monopolies, and 
all commissions, grants, licences, charters, or letters patent, of or 
for the sole buying, selling, Sfc. or of any other monopolie:;, or 
of power, liberty, or faculty, to dispense with, or to give licence 
or toleration to do any thing against the tenor or purport of any 
law, or to give or make any warrant for any such dispensation, 
SfC. or to agree or compound for any forfeitures limited by any 
statute; or of any grant or promise of the benefit of any such 
forfeiture, before judgment thereupon, and all proclamations, Sfc. 
tending to the furtherance of the same, are contrary to law, and 
void : And it is enacted, That monopolies, and all such commis- 
sions, S,-c. shall be examined, heard, tried, and determined by, 
and according to the common laws of this realm, and not other- 
wise ; hut it is provided that this act shall not extend (c) to any 
warrant or privy seal from the king to the justices of either 
bench, or the Exchequer, or of assize, or of oye7' or terminer and 
gaol- delivery, or peace, or other justices having power to hear 
and determine offences against any penal statute, to compound 
for the forfeitures of any penal statutes depending in suit before 

thern, 



21 Jac. 1. c.3. 
That this sta- 
tute is in af- 
firmance of 
the common 
law, vide 
2 Hawk. P. C. 
C. 26. § 80. 
(r) Such jus- 
tices by such 
warrant can 
make such 
composition 
for tne use of 
the king only ; 
per Ld. Coke, 
."Inst. 178. 
Bat by the 
18 Eliz. supra, 
they may give 
leave to an 
informer to 
compound 
with a defend- 



(G) Whether the Fenalty may he compounded, <J'C. 



65 



tliem, after plea pleaded: Also it is further pr&oided. That the ant after plea 
said act shall not extend to any grants, S)X. that had been granted P'^^Jed, 
concerning the licensing of taverns, or selling, uttering, or ^ og Sgl [ft 
retaihng wines to be spent in the house of the party selling is the rule'of 
the same, or concerning the making of compositions for such the Court of 

licences, so as the benefit thereof be reserved to the use of the -^'"g's Bench, 1 
1 • o that where 

Kmg, CfC. ^ ^ ^ they give leave 

to compound, the king's half of the composition shall be paid into the hands of the master of 
the crown office for the use of his majesty. 4 Burr. 1 929. The giving leave to compound is 
discretional in the courts. I Stra. 167. 1 Wils. 79. 130. It hath been given after verdict for 
the plaintiff". 5 Term R. 98.] ||In a later case, however, the Court of C. P. seemed to doubt 
their power to give leave after verdict without the consent of the attorney-general. In all 
events, they said, it was not a matter of course; circumstances must be laid before them to 
satisfy them that the defendant was entitled to such an indulgence. 1 Bos. & Puil. 18.j| [If a 
defendant obtain a rule to stay proceedings upon payment of a sum agreed upon between 
him and the plaintiff, the court will enforce the payment of that sum by attachment. 
5 Term R. 257.] 

JIThe application for leave to compound a penal action must i Chitt.R.Jsi. 
be made to the court in bank, and not at AVs/ Prius on the trial 
of the cause. 

In one case vv'here the defendant was in execution, the Court iStra. 167. 
of King's Bench, on an affidavit of his poverty, gave the plaintiff 
leave to compound with him. 

But in the C. B. where part of the penalty goes to the king, i Taunt. 105. 
the consent of the crown must be obtained before the motion for "^ i'aunt- 268. 
leave to compound can be granted, whether a verdict has passed 
for the plaintiff or not. 

It is discretionary in the courts to give or withhold leave ; and Tidd, 557 
they refused it in an action on the 25 G. 2. c. 36. for keeping a 
disorderly house. 



(9th edit.) 
2 Black. R. 
1157.; and see 
2 Smith, 195. 

1 Bos. & Pull. 
51. 



On a bonajide composition, though not on a collusive one, the 
plaintiff may be allowed a reasonable sum for his costs ; and in 
compounding a penal action on the post-horse act, which gives 
costs to the prosecutor, the Court of Common Pleas allowed 
him to receive the deficient duties not amounting to 40^., and 
full costs of suit, though exceeding together the 405. paid to the 
crown. 

But where no costs are given to the plaintiff, as in an action 2 Taunt. 213. 
on the statute of usury, the crown is entitled to a moiety of the 
sum agreed to be paid to the plaintiff for his costs ; for whatever 
the defendant may pay under the name of costs is considered, in 
fact, as an addition to the penalty. 

When leave is given to compound a qui tarn action, it is a 
general rule that the king's half of the composition shall be paid 
into the hands of the master of the crown office in the King's 
Bench(a), or one of the prothonotaries of the Common Pleas (6), 
for the use of his majesty, which is now usually done before the 
rule is drawn up. And where the defendant in a qui tarn action 
obtained a rule to stay proceedings on paying a sum agreed upon 
between him and the plaintiff, the Court of King's Bench con- 
sidered it an undertaking by him to pay that sum ; and for the 

G S nonpayment 



(a) R. M. 
7G.5. K.B. 
4 Burr. 192.0.; 
and see 
2 Black. R. 
1154. 

Black. R. 
1157. 



{b)2 
1154. 



86 



ACTIONS ON THE CASE. 



5 Dura. & 
Ewt,857. 

R. E. 33 G. 8. 
K.B. 

7 Taunt. 43. 
S Marsh. 358. 
8.C. 



R.M. 13Jac.l 
C.P. 



5 Taunt 850. 



nonpayment of it granted an attachment. But for preventing 
any doubt in future, an order was made, that " every rule to be 
drawn up for compounding any qui tarn action, do express that 
the defendant doth undertake to pay the sum for which the court 
has given him leave to compound such action." 

So, in the Common Pleas, where a defendant, in a penal 
action, obtains a rule to stay proceedings on payment of part of 
the penalties, the court will grant an attachment against him for 
nonpayment. And in diat court it is a rule, on compounding 
informations on penal statutes, that " if the defendant, after 
" composition made with the informer, do not voluntarily come 
" in to answer unto the king for his fine, to be taxed and assessed 
" by tlie justices of this court for his majesty's use, then a capias 
" ad satisfaciendu7njinem shall be awarded against him to compel 
" him thereunto; whereupon the fine being set and assessed, 
" shall be presently paid in : and satisfaction being thereupon 
" made, and entered by the prothonotary upon the roll of the 
** said information, shall be for ever a full and final discharge of 
" the defendant for the same offence." 

The plaintiff, in compounding a penal action by consent, 
having by mistake abandoned a good cause of action, the Court 
of Conmion Pleas refused to interfere and rescind the order 
made thereon. || 



ACTIONS ON THE CASE. 



JT has been observed, that for every right, and for e^very 
injury done a man in his person, reputation, or property, the 

party hath a remedy. But this remedy he must take according 
.««, «.v.. ai.- ^ ^y^ methods laid down and rules prescribed by the law ; for 
tioD was never which purpose there are writs framed, and setded actions, to 
brourfitbcfore; which he must apply; as debt upon a contract, trespass on a 
iSsTr coming "|a";fest and open invasion of his property, S^c. But, where 
■ * the law has made no provision, or, rather, where no general 

action could well be framed before-hand, (the ways of injuring, 

and methods of deceivmg being so various,) every person is (a) 

allowed both by the common law and the st. Westm. 2. 13 E. 1. 

C.24., to bnng a special action on his own case, which is a 

liberal action, {b) 

r^r. FiJsModl,^^^^^^ Cro.Jac.478. Roll. Abr. 108, 109. 2R0II: 

o;^ the .tatSi of Jf<;,5o„' wl Y\' ^ "'• ''^r^P'' Z^'^^^^^", no action having been brought 
«n uic iniuie otJUerion, it is to be presumed no act on will lie- and Pn T iff «i h ^^^ I rl 

Ew mS^-^'edTor act on S^^ToTl 'e MoVf/' ^ "''f %^ thing an injury, the san.e 
•dH.) (*) 2 Burrf R. ooe. 101 1^012 ' " ^^' ^^ °°*^ ^^^ *° C°- ^itt. 81. b. (I3th 

These 



Co. Lit. 56. a. 
6 Mod. 53. 54. 
(a) Nor is it 
any objection 
that Mich ac 



to view the 
huid*, to see 
if any waste 
waaoom- 
initted, being 
hindered by a 
ttflUKCi from 



ACTIONS ON THE CASE. 87 

These actions are founded on some fraud or deceit in contracts, [They arise 

or some secret iniurv to a man's right or property, and are said simply from 

, „ J J oii^*/'^ tort or wron*'' 

to arise from a non-feasance, male-feasance, or mis-feasance. ^hgre no "' 
But as this division seems too general, I shall choose the follow- breach of any 
ing, as more proper to include the most material cases that fall contract is 

under this head, referring to others for a more full discussion of suggested, and 

, . , , .^^ 1 no forcible 

several particulars relating to them. violence im- 

puted to the defendant. 5 Wooddes. 167.] ||And that they lie in many cases for breaches of 
duty arising out of contract, or ex quasi contractu, see Carth. 62. 2 New R. 365. 3 East, 62. 
12 East, 452. 2 Marsh. 485. 3 Brod. & B. 54.1| 

(A) What Persons, with respect to the Injury, may 

bring an Action on the Case. 

(B) Against whom such Action lies. 

(C) Fbr what Injuries an Action on the Case will lie ; 

and herein of those Cases where a Man may be 
said to suffer Damnum absque injuria, 

(D) At what Time the Right of Action shall be said to 

have accrued. 

(E) Of Actions on the Case for Fraud and Deceit in 

Contracts, on an implied or express Warranty. 

(F) Of Actions on the Case for Injuries to a Man's 

Person, Property, Right or Privilege : And 
herein, 

1. Where an Action on the Case 'will lie against Officers 

and Ministers of Justice. 

2. Where Case mil lie for Torts and Injuries committed 

by Persons contrary to the Duty of their Trades and 
Callings. 

(G) Where an Action on the Case will lie for a 

Nuisance, and therein of the Inconvenience of 
multiplying Actions. 

(H) Where an Action on the Case will lie for a Con- 
spiracy, and oppressive Proceedings in Pro- 
secutions and Suits at Law. 

(I) Where Case will lie though the Party injured has 
another Remedy. 

(K) Where Case will lie though the Wrongdoer be 
punishable criminally. 



G 4 (A) What 



gg ACTIONS ON THE CASE. 

(A) What Persons, with respect to the Injury, may 
bring an Action on the Case. 

Bulrt. 68. T F ^. delivers goods to B. to^deliver over to C, and B. does not 

Hardr.ssi. •■• deliver them over accordingly, but converts them to his own 
aP. •aduid y^g^ ^jjj^gp J Qj. Q n^gy j^a^g an action against B. but both shall 
thgr could not ^^^ ^^^^^ ^^ ^^^.^^^ ^^^ j^^ ^j^^^ g^.^^ ^^^^^ j^jg action shall go on 

with the same. 
9 Let. 909. If ^' is seised in fee of the reversion of a close, expectant 

rid# « RoU. upon a term for years, and B. is possessed of another close 
Abr. 55. adjoining tliereto, between which closes there runs a rivulet, and 

* ^7*^ So 'if ■^* *^°P* '^ P^ ^'^^ ^'*® *^'°"^® °^ ^' ** surrounded, so that the 

iTicMet »' timber-trees, <^c. become rotten, A. in respect of the prejudice 

houM to B. to the reversion, and the termor, in respect of the possession, 

for yfw%, and ^^^ ^^ j|^g shade, shelter, ^c. may each (a) have an action ; and 

down th'rouch satisfaction given to one is no bar to the other. 

the neglect of a nei<»hbour, A. may have an action for the damage to his inheritance, and B. 

for that to his possession. 3 Lev. 360. But see 6 Ann. c. 31. § 6. made perpetual by 10 Ann. 

c. M. §\. by which this remedy is taken away. 

Provost, &c. II If the tenant, or a stranger, do a present injury to the estate 

n"***n °^ ^'^® reversioner, the reversioner may have this action against 
IbrdTlHalirt, ^»"> pending the term.|| 

14 East, 489. Ipackson v. Pesked, 1 Maule & S. 233. Peyton v. Mayor of London, 9 Barn. 
& C. 785. J and sec 1 Barn, & C. 1 45. 1 Moo. & Malk. 550.1| 

If a master of a ship brings an action on the case, and declares 

that the ship was laden with corn in such a harbour, ready to 

sail for Dantzic, and that the defendant entered and seized the 

ship, and detained her, per quod impeditus et ohstructus fiiit in 

viagio : this action well lies, for the master has not the property 

8«Ik. 10. pi. 4. of the ship, but the owners; and he is only a particular officer, 

Ld.Rayin.558. and can only recover for his particular loss : yet he might have 

Gaince. brought trespass, as a bailiff of goods may, and then as bailifFhe 

could only have declared on his possession, which is sufficient to 

maintain trespass. 

Cro'jM^asj ^^^ servant is cosened of his master's money, the master may 

So, if Tsur- ***^^ °^ action on the case against the cosener. 

geoo, in connderation of a sura of money, undertakes to cure my servant of a hurt, and he 

•pphes unwholesome medicines thereto, on purpose to make the wound worse, by which 

1 lose the service of my 8er\ant for a long time, I may have an action on the case against the 
•uricon. Roll. Abr. 98. Roll. R. 1 24. S. C. adjorn. 2 Bulst. 332. S. C, and quoad the point 
of law, the court inclmed for the plaintiff, but for default in the pleadings adjourned. And 
Mdiolr" ^^ composition. Roll. Abr. 88. HSee tit. Master and Servant (I), 

SfVilJ'Fr' ^^'^^'^'^^"■^"* ^^^^ '^'^' in execution upon a capias ad 
»49. S. P. ild-' *°^^sMi^dum, at the suit of J. D. and after J. S. escapes by a 
mitted prrmr. 'Wcue of himself, the sheriff may have an action upon the case 
(a)Bui,if wch against him for this escape, for he is thereby chargeable {b) over 
!LCri!r.h»t 'o"" t^'s to J. Z). and this escape made from his bailiff was an 

f**"^"?*^ ^™!" i!'*' **""^' ^^"^ ^^^f'^ shall not have an action upon the case against him, 
bMMW be w not Charlie over : but the baUiff only is chargeable. For this vide RoW. Abr. 
•7, f«, W. t ro. Elu. 26, 349. Moor, 432. and tit. Escape in Civil Cases 

If 



(B) Against whom such Actio7i ties. 89 

If a man gives money to his servant to carry to such a place, Vide head of 
and he is robbed, the master cannot bring case against him, for ^^^'^^^ o"d 
a servant only undertakes for his diligence and fidelity, and not VoTT 
for the strength and security of his defence. 

But, if ^. is employed by B. to sail from England to the Sid. 298. 
IndieSy and A. covenants, that he or his servants vi^ill not thence Hussey and 
import any calicoes, Sfc. and A. retains C. as his servant in this ^^^^y- Lev. 
voyage, and acquaints him with the covenant, and notwith- s.C Roll Abr* 
standing C falsely and fraudulently brings thence certain call- 105. S.P. 
coeSf Sfc. A. shall have an action against C. ; for though no action 
lies by a master for the bare breach of his command, yet, if a 
servant does any thing falsely and fraudulently to the damage of 
his master, an action will lie. 

[An action on the case for goods lost may be maintained Dgyjg y^ Jq^. 
against a carrier either by the consignor or consignee ; and it dan, 5 Burr, 
may be brought by the former, notwithstanding a private agree- 2680. Moor v. 
ment between him and the consignee, that the carriage should be ^ '„ 
paid by the latter ; for the carrier is liable upon his agreement.] 559 WThe 
doctrine that the action may be brought either by the consignee or the consignor seems 
unsound. The question is governed by the consideration in whom the property of the 
goods is vested ; and it is now settled that if the goods were ordered to be delivered to a car- 
rier, whether a particular carrier be named or not, thej' vest in the vendee by delivery to the 
carrier, and the action against the carrier for their loss must be in the name of the vendee. 
Dawes v. Peck, 8 Term R. 330. Button v. Solomonson, 3 Bos. & Pull. 582; and see Jacobs v. 
Neilson, 3 Taunt. 423. And though the consignor pay for the booking of the goods, or be 
liable for the carriage to the carrier, these circumstances have been held to make no difference. 

8 Term R. 530. King v, Meredith, 2 Camp. 639. ; and see Brown v. Hodgson, 2 Camp. 36. ; but 
see contrh the cases above referred to. 5 Burr. 2680. 1 Term R. 659., and 3 Camp. 320. But 
if the vendor is induced by a fraud of a swindler to deliver goods to a carrier for him, and the 
carrier by negligence lets him get possession of them, the vendor may sue the carrier in his own 
name; for no property in such case passes out of the vendor. Duff v. Budd, 3 Bro. & Bing. 
177. oMoo. 469.|| 

(B) Against whom such Action lies. 

T F the servant of a taverner sells wine to another which is cor- 9 H. 6. 53. b. 
rupted, an action upon the case lies against the master (a), JRoll. Abr. 95. 

though he did not command the servant to sell it to any par- ^' ^' (") ^"' 
..1° ,7^ •' ^ no action 

ticular person. (6) lies against 

the servant. Roll. Abr. 95. So, if an attorney in an action of debt, knows of, and was a witness 
to, a release of the debt made before the action brought for it, yet no action lies against the 
attorney, for he acted only as a servant, and in the way of his calling. 1 Mod. 209. /;er curiam. 
Vide 2 Black. R. 869. {b) If a servant sells an unsound horse, or other merchandize in a fair, 
no action lies against the master, unless he commanded him to sell to a particular person. 

9 H. 6. 53. Roll. Abr. 95. S. C. Poph. 143. S. C. cited. 2 Roll. R. 6. S. C. cited. But, if by 
the command and covin of the master he sells to a particular person, an action lies against the 
master, for it is then his own sale. 9 H. 6. 53. Fitz. Action sur le Case, 5. S. C. Roll. Abr. 95. 
Bridgm. 128. S.C. cited. Sed qu. In the former case, if the servant warrant a horse sound 
when he is unsound, and receive a sound price of the buyer, whether the master is not bound 
by the warranty of the servant, and liable to an action ? ||It is now held, that if a servant is 
employed by his master to sell a horse, he has an implied authority to warrant it, and the master 
is bound by his warranty. Alexander v. Gibson, 2Camp. 555. ; and see 5 Esp. Ca. 72. 1 Dow. 
P. C. 45. 3 Term R. 76 1. 15 East, 45., and tit. Master and Servant (K), Vol. V. The doctrine 
that a sound price given implies a warranty is now exploded. 2 East, 322.|| 

So, if a goldsmith makes plate, wherein he mingles dross, so Vide Cro. Jac, 

that it is not according to the standard, and by his servant sells r oc^s^c' 

if J 



00 



ACTIONS ON THE CASE. 



it; an action lies against the master, because it fails in the price 

of silver. 
BHdcn. I«5, ^"l 'f -^-y ^*"g possessed of certain artificial and counterfeit 

It6. SoutbCTn jewels, of the value of 168/., and knowing them to be such, de- 



■nd How, 
•djuUsed. 
9R0U.R.5. 
a«,«7.8.C 



livens them to B. his servant, commanding him to transport the 
said jewels into Barbary,^ and to sell them to the king of Bar- 
baryt or such otlier person as would buy them, but gives B. no 
charge to conceal their being counterfeit; and thereupon B. 
Pop*^»«- goes into Barbary, and knowing these jewels to be counterfeit, 
Cro 3Jf"J69r s****^" ''»*^'" ^ ^' ^^^ SP^^ ^"^ ^''"^ jewels, and affirming to C, 
ac.,«ndiherc that they were worth 810/., desires C. to sell them to the said 
Mid^the court kinff for 8I0/L, which money C. pays B.y and B. thereupon ira- 
"**!"^. mediately returns to England, and pays the 810/. to A. his 

£«^ prin- roster ; and after the jewels being discovered to be counterfeit, 
dpally becaufc C. is imprisoned by the said king till he repays 



the 810/. out 



of his own effects; of all which matter C. gives notice to A. and 
demands satisfaction, Sfc, yet no action lies against A. ; for jewels 
are in themselves of an uncertain value, and B. was not by A, 
particularly directed to C, and all that was done quoad C. was 
the voluntary act of the servant, for which the master is not 
bound to answer. 



A. did not 
order B. to 
coocoii their 
being counter- 
feit. |But it 
Sipean from 
e report of 
this case in 

Brid^. 196, 1S7., and S MolL 330., that the plaintiff had judgment; but in 2 Roll. R. 26, 27. it 
b Hud judgment was for the defendant.|| 

Salk. S89. 
pL 85. Ruled 
by HoUon 
eridcnce at 
MM priui ; 
bat for this 
flUr tit. 
Mmkmdmid 



i, 



Salk.988. 
n. Ruled 
HoUwlmd 

puBotnTnon- 
Miit. |But it 
UHich 




th« 

WIBUMT. 

OHMton, 
t8twfc.a4.; 
■adit wiQ not 
BaMMOitU)« 



In an action on the case for a deceit, the plaintiflf set forth 

that he bought several parcels of silk for silk, whereas it 

was another kind of silk ; and that the defendant, well knowing 

this deceit, sold them to him for silk. On trial, upon not 

guilty, it appeared that there was no actual deceit in the^ de- 
fendant, who was the merchant; but that it was in his factor 
beyond sea : and the doubt was, if this deceit could charge the 
merchant. And Holt C, J. was of opinion, that the mer- 
chant was^ answerable for the deceit of his factor, though not 
cnminaliter yet civiliter ; for seeing somebody must be a loser 
by this deceit, it was more reasonable that he that employs and 
puts a trust and confidence in the deceiver should be a loser, 
than a stranger; and upon this opinion the plaintiff had a 
verdict 

If A. brings case against the master of a stage-coach, on the 
custom of the realm, for a trunk lost by his negligence, S^c. and 
on evidence it appears that the trunk was delivered to the servant 
who drove the coach, who promised to take care of it, and that 
the trunk was lost out of his possession ; the action does not lie 
against the master, for a stage-coachman is not within the custom 
as a carrier is (a), unless he take a distinct price for the carriage 
of goods as well as persons ; and though money be given the 
• v/*^* u^' '^*' ^^ * gratuity, and cannot bring the master 
withm the custom ; for no master is chargeable with the acts of 
hJs servant, but when he acts in execution of the authority given 
by his master, and then the act of the servant is the act of the 
rooster. 

unless 



(B) Against whom such Action Hes. 91 

unless he stipulate for a reward to be paid to himself. Ibid.\\ (a) That if a carrier's porter 
receives goods, the carrier shall be liable. Comb. 118. per Dolben J. jjSee Cavenagh v. Such, 
1 Price, 328.11 

II On the trial of an action on the case for not delivering, ac- Ellis v. Tur- 
cording to contract, certain goods of the plaintiff at Siockwith, "^^' ^z^^"^™ ^' 
which were shipped on board the defendant's vessel at Hull ,- jj^ses where 
it appeared that the defendant's vessel, trading from Hull to the servant is 
Gainsborough, took on board some goods belonging to the acting within 
plaintiff, which were to be delivered at Stochwith ; the vessel hj^g^^^i^*'^ 
went safe as far as Stockwith, and there delivered part of the mg^t the 
cargo ; but the master of the vessel finding it inconvenient to master is liable 
deliver the rest there, proceeded on the voyage, and the vessel to answer for 
sunk before her arrival at Gainsborausli. It was objected, ^"^ damage 
that in this form of action, an action on the contract for not from the un- 
safely carrying and delivering the goods at Stockwith, the de- skilfulness or 
fendants were not liable ; as the non- delivery of the goods there negligence of 
was owing to the misconduct of the master of the vessel ; and 1;^ ^^'^^^^.J 
that if they were liable at all, the action should have been for the ley v. Gaisford 
tort. But it was holden, that though the loss happened in con- 2 H. Black, 
sequence of the misconduct of the defendant's servant, the supe- ^22. M'Manua 
riors (the defendants) are answerable for it in this action; T g "* j^5' 
that the defendants are answerable for the conduct of their O'^le v. Barnes 
servant in those things which respect his duty under them (a), sTermR. i88. 
although not for his conduct in those things which do not respect ^tone v. Cart- 
his duty under them. 2"/^^/' ^T^™ 

Steinman, 1 Bos. & Pull. 404. Croft v. Alison," 4 Barn. & A. 590. Laugher v. Pointer, 5 Bam. 
& C. 547. ; and see tit. Matter and Servant (K), and tit. Carriers. 

Where a vessel was run down by a sloop of war during the Nicholson v. 
watch of the lieutenant, who was upon deck, and had the actual ^ou"sey, 
management and direction of the steering and navigating of the ^^d see' * 
sloop at the time, and when the captain was not upon deck, 4 Made & S. 
nor called by his duty to be there; it was adjudged, that the 86., and tit. 
captain was not answerable for the damage. || V^'^^^^r^K? 

If two are constituted post-masters general, by letters patent, Salk. 17. pi. 8. 
pursuant to the statute 12 Car. 2. c. 35., and in the patent there i^s. Carth. 
is a power to make deputies, and appoint servants at their will o^^r h f ^ 
and pleasure, and to take security of them in the name and to Cotton and 
the use of the king, and that they, the post-masters general, shall Sir Thomas 
obey such orders as from time to time shall come from the king ; Frankland, 
and as to the revenue, shall obey the orders of the treasury; and f m d E^^t 
it is further granted to them, that they shall not be chargeable los.Ld.Raym. 
for their officers, but only for their own voluntary faults and 646. 12 Mod. 
misbehaviours, and this is granted with a fee of 1500/. per an- 472. Comyns, 
num ; and A. having exchequer-bills, encloses them in a letter n*^*.}, iX 
directed to B. at Worcester, and delivers it at the post-office at s.C. with the 
London, into the hands of J. S. who was appointed by the post- arguments 
master general to receive letters, and had a salary ; by three P''° ^^^ <^on. at 
judges against Holt C. J. the post-masters general are (a) not g'^fjf ^^"Jg 
I'able. ^^i;,, r^. • 

sons, who held also that J. S. was chargeable, but not as an officer, but as a wrong-doer. [The 
opinion of the three judges hath been confirmed in a late case of Whitfield v. Lord Le De- 

spenser, 



92 ACTIONS ON THE CASE. 

^„„„ i„ which 1. «. dcciiea that d.e ^'-^r d"l^y p°o"]fi:Lrrl f^^! 

CbX'v.'"'lAn acul for not repairing fences, .hereby a party is dam- 
hX»" nififd, cannot be brought against the owner of the fee, who is not 
4TerniK.31«. j possession, but lies only against the occupier.] 

W^i^E. in my possession, tl^ugh 1 have a remec y =«--t the tres 
Vic.r...\Vil. p^sor, yet I may have an action agamst him that caused the 

cock^8ElUt,l. J:„.,,rh«npe 

s Bos. & Pull, disturoance. 

a84.. and Pro. Jac. 471.|| i , i v u- 

Roll Abr.90. If 1 deliver my horse to a smith to shoe, and he de ivers h.m 

s;),if I deliver ^o another smith, who pricks hnn, I may have an action on the 

g«°<^^^° ^- case against him, though I did not deliver the horse to him. 

rhemVo rto keep to the use of ^., and B. wastes them I may have an action upon the case 

Ininst B. though I did not deliver them to him. Roll. Abr. 90. 

Scbinotti V. [An action on the case will lie against the commissioners of 

Bumsted, the lottery, for not adjudging a prize to the person entitled to 

6 Term R. 646. ^.^ceive it. 

Blake V. Lan- It will lie against a person who receives or continues to employ 

yon, 6 Term t^g servant of another after notice, though he did not originally 

^tTfJ^and entice him away.] 

Servant {0).\\ , . , , . n , , 

Sutton V. II A person acting in a public function which he is compellable 

Clarke, * to execute gratuitously, using his best skill and diligence, and 

6 Taunt. 29.; actinf without malice, is not liable for consequential damages 

^ITtId." occasioned by his act.l| 

penden, 1 East> 555. 

(C) For what Injuries an Action on the Case will lie ; 
and herein of those Cases wherein a Man may be said 
to suffer Damnum absque injuria, 

TINDER this division various cases maybe crmprehended ; 
^ but, as several of them fall under others, I shall here only 
observe, that though in some cases an injury happens to a man 
in his property, by the neglect of another, yet if by law he was 
not obliged to be more careful, no action will lie. 

Leon. 223. As, if a man finds butter, and by his negligent keeping it 

Owen, Ml. putrifies, yet no action will lie. 

Cro. Elix. 219. Or, if a man finds garments, and by negligent keeping they 
are moth-eaten, no action lies. 

Id. ibid. So, if a man finds goods, and loses them again ; or if he finds 

a horse, and gives him no sustenance, no action lies ; for in 
these cases the law has laid no duty on the finder : for it would 
be too rigorous to obUge him to be charitable in behalf of a care- 
less owner. 

Roll. Abr. 5. But, if he makes gain and advantage of the things he finds ; 

1 Leon. 224. as if he rides the horse, or if he abuses the things ; as by putting 

paper 



(C) For whcU Injuries an Action on the Case will lie, S^» 93 

paper into water; or if he kills sheep, Sfc. he shall answer for Cfo.EHz. 219. 

them. g?"'^ 1^5. 

Stile, 261. 

If A. hires B. to carry a load of timber from one town to another 2 Lev. 196. 
to be unloaded there, at such a place as A. shall appoint, and B. Virtue and 
gives notice to A. that he will bring it such a day, and requests ?'*"'^' Yf °'* 
him to appoint a place where he shall lay it, and he brings it sKeb.Vss. 
accordingly, but A. will not appoint any place where it shall be S.C. adjudged, 
laid, so that the horses of B. are kept so long in the cart, that 
being hot they catch cold and die ; yet B. shall have no action 
against A. for he might have taken his horses out of the cart and 
walked them, or put them in a stable, or if A. would not have 
appointed a place, as soon as he came there, he might have 
unloaded in any convenient place, so that the injury the horses 
received was through his own default. 

II The being delayed four hours by an obstruction in a high- Greasly v. 
way, and the being thereby prevented from performing the same Colling, 
journey as many times in a day as if the obstruction had not ^ ^'"&' ^6^- ; 
existed, is a sufficient injury to entitle the plaintiff to sue the v"M^les^°*^ 
obstructor. 4'Maule'& S. 

101. 

If the proximate cause of the injury to the plaintifFbe his own Butterfield v. 
unskilfulness or want of care, he cannot sue the defendant, though Forrester, 
the primary cause be the defendant's wrongful act ; thus where i? ^*^' ^^' 
the plaintiff was riding violently and without ordinary care, and Adam 
rode against an illegal obstruction in the highway, it was held 2 Taunt. 314. 
he could not maintain an action. 

An action on the case will not lie against a person suing out Sclieibel y. 
a writ, if he neglect to countermand it after payment of the debt, Fairbain, 
unless malice be averred. Without an averment of malice, it 1 Bos. & Pull. 

should seem that courts will scarcely subject a party to damages \^?r. , S® ^• 
n. r J J f J o Whiple, 

tor mere non-ieasance. 3 East 314 

Gibson v. Chaters, 2 Bos. & Pull. 129. ; and see 1 Moo. 92. 5 Price, 1. 

But if an execution creditor refuse to accept from the debtor Crozer v. Pill- 
who is in custody the debt and costs when tendered, and to sign '"g. * Bam. & 
an authority to the sheriff to discharge the debtor, an action on ^^* 
the case lies for maliciously refusing, and the refusal to sign the 
discharge, is evidence of malice in the absence of circumstances 
to rebut the presumption. 1| 

If it be damnum absque injuria^ no action on the case lies [a) ; (a) Damnum 
as if a school be set up in the same town where an ancient school ^bsqiie injurid, 
has been time out of mind, by which the old school receives wiU not*Xear 
damage, yet no action upon the case lies, because it is lawful for an action. 
a man to teach where he pleases ; and this is for the ease of the 6 Mod. 46. 
people. P^^ Gould J. 

^ ^ 3 Bulst. 95. 

11 H. 4. 47. 22H.6. 14.b. Fitz. Action sur le Case, 28. S. C. Bro. 42. S.C. Noy, 184.S.C. 
Noy, 184. S. C. cited Roll. Abr. 107. Mod. 69. S. P. per Twisden arguendo. 

So, if I retain a master in my house to instruct my children, n H. 4. 47. 
though this be to the damage of the common master, yet no ^^^- ^**'"' ^^'^' 
action lies. * 



9y 



ACTIONS ON THE CASE. 



Roll. Abr. 107. So, if I have a mill, and my neighbour builds another mill 
Hardr. 16«. upon his own ground, per quod the profit of my mill is dmimished, 
Brownl. 57. yg^ „(, action lies against him ; for every one (a) may lawfully 

(a?t*ut!tf I c*^*^' * *"''' **" '"^ °^" ground. 

have had a mill by prescription in my own land, if another erects a new mill upon his own 
land, if this draws away the stream from my mill, or stops it, or makes too great a quantity 
of water run to my mill, by which I receive damage, so that my mill cannot grind as much 
m it was used to do, I shall have an action on tlic cote against him. 22 H. 6. 14. Dyer, 248. 
Roll. Abr. 107. 

9S H. 6. M. If a man hath a house upon his own ground by prescription, 

b. Roll. Abr. „ * jf j [i^xM a house upon my own ground next adjoining, no 
107. But if I •' *: ,. . ^ ' •' ° 

had a house ac''©" "es against me. 

by prescription upon my ground, another cannot erect a house upon his own ground, so near 
to It as to stop the light of my house. 22 H. 6. 15. 9 Co. 59. Bland's case, Bulst. 115. 
Hut. 136. Roll. Abr. 107. 2 Roll. Abr. 143. 3 Leon. 93. 

S2 H. 6. 14. If I have 100 acres of pasture in a town, and before this time 

^oy- '84. jjQ jjj^,^ \\ax\i ever had any pasture within the same town, and 
those of the town have used to agist their cattle in my pasture, 
and another that has freehold within the town, converts his arable 
land into pasture, so that those of the town agist their cattle 
there, per qtiod this is a damage to me, yet I cannot have any 
remedy against him ; for it is lawful for him to make the best 
advantage he can of his own land. 
Governor &c. ^^'^ ^ sustain an injury by the act of commissioners appointed 
of the British by an act of parliament, without any excess of their jurisdiction, 
Cast Plate- no action lies either against the commissioners or the persons 
glasa Manufac- acting under them.] 
tory V. Mere- ° -• 

dith, 4 Terra R. 794. ||See Harris v. Baker, 4 Maule & S. 27. Hall v. Smith, 2 Bing. 156. 
Boolton T. Crowther, 2 Barn. & C. 703.; and see Jones v. Bird, 5 Barn. & A. 857.|| 



Roll Abr. 98. 
Cro. Jac. 474. 
S. C. 3 Term 
R.57. 



Cro. Eliz. 53. 
adjudged. 
/i.ia3.S.P. 
adjudged. 



Rayin. 194. 
Good jar and 
Butk^aKeb. 
688. S. C. ad- 
Joora. sKeU 



(D) At what Time the Right of Action shall be said 
to have accrued. 

TF .4. sells sheep io B. affirming them to be his own, whereas 
they belong to C, B. may have an action against A. for his 
dc -it, oefore C. hath seized the sheep, or interrupted him; 
because they are things transitory, and therefore the action lies 
before interruption : for if he should stay till C. interrupted him, 
he may be dead before, or other disadvantage may happen. 

If A. recovers in debt against B. and thereupon a capias ad 
satisfaciendum k directed to C. the sheriff of N. to take B. in 
execution, which is accordingly done, and after B. rescues him- 
self, per quod C. becomes liable to answer for the debt ; now C. 
may have an action against B. before A. sues C. ; for the rescue 
and escape was a wrong to C, and he is always chargeable to A, 
for it; and if C. must stay till sued by A., B. may die in the 
interim, or fly his country. 

A. brings an action against B. in which C. is attorney for A., 
and after verdict for A., C. enters judgment before the rules 
(according to the course of the court) are out, per quod B. is 
prevented from moving an arrest of judgment, and whether B. 

may 



(E) Actions on the Case for Fraud and' Deceit. 96 

may have an action against C. was doubted ; and Twisden thought 716 S C ad- 
it hard the attorney should be sued after the judgment is set aside, journ, it ap- 
But 7iote, it does not appear in the case, as reported by Rai/mond, peanng that 
otherwise than from what Twisden said, that the judgment was the judgment 
set aside before the action brought. before B^ ^ 

brought his action. — An action brought against the plaintiff's attorney, for entering judgment 
against the defendant, when the court ordered a nonpros. Hut. 125. and yet it appears the 
judgment was set aside before the action brought. 

If a man forges a bond in my name, it is possible I may be Hob. 267. 
damnified by it, but till it be put in suit against me I cannot ^ ^^•. '*^* 
bring an action against the forger. where'^bythe 

plaintiff's own shewing he had no right of action at the time of bringing it. Vide Carth. 1 13. 
and tit. Error. 

II The cause of action accrues at the time when the tortious Grander v. 

act is done by the defendant, so that the statute of limitations then George, 

begins to run, although the plaintiff rriay not in fact know of the 5 Barn. & C. 

act till long after ; unless indeed the defendant is guilty of fraud in gj^'^j^ ^"^ ^^^ 

concealing the act from the plaintiff's knowledge, in which case the M'Carthy. 

cause of action would seem to be complete only on the plaintifPs s Bam. & A. 

knowledge. Where an act is done not in itself tortious, and some ^26. Brown 

time after consequential damage arises to the plaintiff from it, the ^'n °^&V 

cause of action does not accrue [a) till the damage happens. || 73 . ^nd see 
3 Barn. & A. 288. (a) Roberts v. Read, 16 East, 215. Gillon v. Boddington, 1 R. & Moo. 
161.; and see 3 Barn. & A. 448. 

(E) Of Actions on the Case for Fraud and Deceit in 
Contracts on an express or implied Warranty. 

II (See Addenda to tit. Fraud.) |1 

1. On an implied Warranty in Laia. 

T F there be a communication between A. and B. for the buying ^oU. Abr. 90. 

of certain sheep, and B. the vendor («), says they are his own g*^^ 4^% 

sheep, when in truth they are the sheep of another: whereupon c.ios. 2 East 

A. buys them of B. though B. made not any express warranty of 314. (a) In 

the sheep, yet an action upon the case, in nature of deceit, lies ^" action for 
• ^ u- ' fraudulently 

against him. selling to the 

plaintiff a horse that was not the defendant's own horse, the plaintiff must prove that the defend- 
ant knew him not to be his own horse. Allen, 91. Keb. 523. but, qucere ; et vide C^vth. 90. and 
Salk. 210., that the having possession of any personal chattel, and affirming it to be his, amounts 
to warranty; and an action lies on the affirmation. Per Holt C.J. See ace. 3 Term R. 37. 

II The law raises an implied promise on the part of a sheriff Peto v. Blades, 
selling goods seized in execution, that he does not know that he ^ Taunt. 657. 
has no title to the goods. || 

So, if the vendor affirms that the goods are the goods of a Roll. Abr. 91. 
stranger, his friend, and that he had an authority from him to 
sell them, and thereupon B. buys them, when in truth they are 
the goods of another; yet, if he sold them fraudulently and 
falsely, upon this pretence of authority, though he did not war- 
rant them, and though it is not averred that he sold them, know- 
ing 



96 



ACTIONS ON THE CASE. 



Roll. Abr. 91. 
Stile, 310. 
S.C. Keb. 5S3. 
&C. cited. 



Carth. 90. 
Crosse and 
Gardner. 
5 Mod. 261. 
S. C. Comb 
148, S. C. 



Ing them to be the goods of a stranger, yet B. shall have an 
action upon the case for this deceit. 

In an action upon the case by A. against B. if the plaintiff 
declares that the defendant craftily intended, S^c. and offering to 
sell a gelding to the plaintiff, affirmed that he brought up that 
gelding from a colt, and that the said gelding was then his own, 
which the plaintiff believing, afterwards, that is to say, upon the 
same day and year, and at the place aforesaid, did buy the said 
gelding, ^c. the action lies upon this declaration, though there 
was no warranty upon the sale ; for this was an apparent deceit, 
contrary to his own knowledge ; and though it is not averred that 
he sold the gelding at the same time when he affirmed he bred 
him up from a colt, but that the plaintiff /(O^/^-a the same day and 
place bought him, giving credit thereunto, this shall be intended 
immediately after the speaking of the words ; for all the words 
could not be spoken together. 

So in case^ in which the plaintiff declared, that there being a 
colloquium between him and the defendant, concerning the buying 
and selling of two oxen, which the defendant then had in his 
possession, that he (the defendant) adtioic et ibidem false et mali- 
tiose affirmahat) that these oxen where his ; to whiqh the plaintiff 
Show.68.S.C. giving credit, bought them of the defendant for so much money; 
(a) fj"f^'^ when in truth the said oxen were the proper goods of t7. S. and 
vendidit, <J-c. that he the said J. b.postea, Sfc. lawiully recovered the said oxen 
after verdict, from the plaintiff, Sfc. it was holden after verdict, that the action 
imports that it lay on the bare affirmation, without an express warranty ; and 
an" 'supplies ^^^ugh objected, that it was not set forth that he {a) sciens that 
the want the oxen were the oxen of J. S. nor that he did it deceptive. 

thereof. Stile, 3 lo. sKeb. 807. vide Keb. 309. — So sciem, ^c. implies that it was fraudtt- 
Imthr. Sid. 146. — So where the plaintiff declares quod improvidk et incautb absque consider- 
atione inaptUudimt loci, he drove his horses over the plaintiff; though not said sciens that they 
were unruly. 2 Lev. 172. 

M^dira^v^''"' ^°' ^^®^*^ ^^^ plaintiff declared, that the defendant being pos- 
Stoughton.for messed of a certain lottery-ticket, sold it to him, affirming it to be 
selling false ^'s own, whereas in truth it was not his, but another's ; defendant 
bills of credit, pleaded, he bought it bona fide, and so sold it : on demurrer, 

repJrtS\y ^°^^ ^^^' "^"^'* ^^^^' ^''^^'^^ °"^ having possession of any per- 
lA. Raymond, ^*^"^^ chattel, sells it, the bare affirming it to be his, amounts to 
595. and the a warranty, and an action lies on the affirmation ; for his having 
duunction possession is a colour of title, and perhaps no other title can be 
twJln^Se ^^"^^ °"'' "^''^^' ^^^^''^ the seller is out of possession ; for there 
teller being in '"^y ^^ room to question the seller's title, and caveat emptor in 
poacMion and such case to have either an express warranty, or a good title : so 
2J1. b'S^ " '^'" '^^ case of lands, whether the seller be in or out of pos- 
mentioned by f^^^'^"/ ^^ the seller cannot have them without a title, and the 
him. Sec Mr. '^"3'^'* ^s at his peril to see to it. 

J^-jfer'. observations upon it, 3 Term R. 58.] Vide Stile, 343. 346. Cro. Jac. 197. 
RS^efranf' ^^ ^^^ plaintiff declares, that whereas Queen Elizabeth was 
Vaughan. ^^l^*^" /" J^^ pf t^e advowson of the vicarage of S. whereto the 

Moor, 4€7. t'thes m 5. did belong, and that the defendant, upon the ninth 
S.C of June, did affirm himself to be lawful incumbent thereof, and 

that 



(E) Actions on the Case for Fraud. (Warranty.) 97 

that he had right to the tythes from the death of Jl N. and after, 
upon the sixteenth o^June, the plaintiff having a communication 
with the defendant about his buying of the defendant the said 
tythes till Michaelmas following, the defendant adtunc sciens that 
he had no right thereto (the defendant not having been insti- 
tuted, c§T.) yet false et deceptive sold them to the plaintiff for 30/. 
and alleges in facto, that J. N. was after presented, ^c. and took 
the tythes, <^c. the action does not lie ; for there was no warranty 
that the plaintiff should enjoy them ; and this affirmation also 
was in time precedent to the sale. ^ 

So, if the plaintiff declares, that upon a communication be- Yelv. 20. 
tween the plaintiff and the defendant, for the purchase of a certain Harvey and 
term of years, v/hich the defendant then had in certain lands, Young. See 
the defendant asseruit to the plaintiff, that the said term was ^^^ 
worth 1 50/. to be sold ; to which the said plaintiffj'^l^^w adhihens 
did give the defendant 1 50/. for the same, and that after, the 
plaintiff offering the said term to sale, could not get so much for 
the same ; the action does not lie ; for here was only a naked 
affirmation of the defendant, that the term was worth so much ; 
and it was the plaintiff's folly to believe him. 

But if, on a treaty for the purchase of a house, the defendant Salk.211.pl. 5. 
affirms the rent to be SO/, per annum, whereas in truth it is but ^ ^.^"^^ ^1?4 
20/., and thereby the plaintiff is induced to give so much more Ray^^'ms 
than the house is worth, the action lies (a) ; for the value of the g. C. (a) Lev. 
rent is matter that lies in the private knowledge of the land- 102. Sid. 146. 
lord and tenant; and if they affirm the rent to be more than it Keb. 510. 318. 
is, the purchaser is cheated, and ought to have a remedy for ^^^\y'^^ " 
it. (^) (6) But if A 

possessed of a term of years, offers to sell it to B., and says that a stranger would have given 
him 20/. for this term, by which means B. buys it, though in truth A, was never offered 20/. 
no action on the case lies, though B. is hereby deceived in the value. Roll. Abr. 91. 101. 
Sid. 146. S. P. 

II Where an action is brought for a false representation by ^^^^^ ^• 
defendant knowingly made, and by which the plaintiff has sus- r'Vj^^'''.^, 
tamed damage, it is not necessary to shew that the aeienuant 
intended to injure the plaintiff. || 

2. Where Case will lie for a Fraud on an express Warranty. 

If A. being a goldsmith, and having skill in jewels and precious Cro. Jac. 4. 
stones, hath a stone which he affirms to be a Bezoar-stone, and tvveen^Chan^- 
sells it to B. for 100/., when in fact it was no Bezoar-stone, no jgr and Lopus 
action lies against A. ; for every one in selling his wares will affirm upon a writ of 
that his goods are good, or that the horse which he sells is sound ; ^^'^ '" 'j'^'"* 
and yet if he does not warrant them so (c), if false, no action g^rst judgment 
lies, (a) reversed ac- 

cordingly by all the justices and barons, cont. Anderson. Vide Dyer, 15. 'n margin, S. C. 
cited, as adjudged in B. R. and they said, that the opinion of Popham was, that if I have 

any commodity • • " ' •• • « . . r,- 

80, an action 1 

it to be good, 

as adjudged in "b. R. 2 Roll. Rep. 5. S. C. cited, and said that the judgment was reversed, 

because it was not pleaded that he knew it to be false at the time of the sale. ||So 

Vol. I. H Springwell 




98 ACTIONS ON THE CASE. 

Snrinewcll v. Allen, Alc^•n 91. Paget v. Wilkinson, Tr. 8 W. 5. 2 Bast, 448. in not. and 
DowJinj: V. Mortimer, Ibid. 453. in not. (c) If therefore he warrants tliem, in an action on 
the cnsHbr a breach of that warranty, the scioiIIt need not be charged, nor if charged need it 
be proveii. Willianison v. Allison, 2 East, 44G. LofFc, 146.|| (d) [An affirmation at the time of a 
sale is n warranty, provided it appear in evidence to have been so intended. 3 Term R, 57. 
tuprii, (E.)] llAs to implied warranties of the quality of goods &c. sold, see Parkinson v. Lee, 

2 East, 514. Gray v. Cox, 4 Barn. & C. 108. Laing v. Fidgcon, 6 Taunt. 108. 4 Camp. 169. 
144. Jones V. Bright, 5 Bing. 553.\\ 

Jeudwinc v, ||It lias been held that the setting the name of an old master 

Riade, 2 Esp. against a picture in a sale catalogue is no warranty, but merely 

*'** a representation of the seller's opinion. 

Hall V. Gray, But if the agent of the vendor of a picture, knowing the vendee 

I Stark. 434. labours under a delusion with respect to^i picture, which mate- 

rially influences his judgment, permits him to make the purchase 
without removing the delusion, the sale is void. || 

II H. 6. 18. If a man sells a tun of wine (a), and warrants it to be 

^•^•^•^^- sound, and not corrupted, if it be corrupted an acftmi upon the 

o. p. Poph. 1- *• 

J43.S.P:cited. <^«5^"es. 

A. sells sheep, and warrants that they are sound, and shall continue so for a year after, this is 

good, and shall bind him. l|See JoliflTe t. Bendell, 1 Ry. &Moo. 136.|| Vide Dam. Ahr. 96. 

188. (a) This action lies, though he hath not paid for it; for the other may have debt for his 

money. Bro. Guarranty, 59. ^ 

(b) 11 H. 6. 18. So, if a man sells a horse (Z»), and warrants him to be sound of 

S r M B t^' ^^^ wind and limbs (c), if he be not ah action upon the case lies. 

without such warranty no action lies. 20 H, 6. 35. F. N. B. 94. S. P. Bridg. 127. S. P. Roll. 
Ahr. 90. S. P. [If sold at the price of a sound horse, case in the nature of deceit would lie. 
Deianccy v. Dymock, sittings after Easter term 1789, coram Lord Kenyon. See too 

3 Wooddes. 199.] ||But a sound price given does not raise an implied warranty. 2 East, 322. 
Douglas, 20.|| 

D^mlon V. []If the seller sell the horse as of the age stated in a written 

PeakeCa. 123. V^^^ff^^^ this is a warranty, though the seller declare he^ knows 

nothing of the horse except what he has learned from the 

pedigree. || 
Roll.Abr. 96. If ^ nian, knowing his horse to be lame and foundered, offers 
((f) Rut qiuere, him to me to buy, and warrants him to be sound, 4 c. relying 
nt^rllJule^tat "P°" ^^^^^^ ^ buy him, by which I am deceived ; though the 
thrwarranty^ warranty here was before the sale, yet because this was the cause 
must be made of the sale, an action upon the case Hes thereupon, {d) 
at the time of the sale. Vide Cro. Jac. 4. 1 96, 1 97. 630., nor can it be made after ; per Bridgman 
127. Godb. 31. Vide Salk. 211. pi. 4. [Where a treaty for the sale of a commodity had 
been entirely broken off, a warranty made at the time of such sale was holden not to extend 
to a subsequent sale ofthe same commodity at a reduced price. Anon. Stra. 414.] 
Roll. Abr. 97. ^^ ^' ^ells a horse to B. and warrants him to be sound of wind 
adjudged. and limb, and clean of legs, whereas he well knows that he is 

I.C adiiidged s^oyWer-pitched, and has splints upon his legs, an action lies 
(*) But (}u^re ^g^^st him upon this warranty (e) ; for these imperfections are 
of .^ V not subject to the view of an unskilful person. 

**' V't ^*'"^'. ^ ^°"- ^- ^' ^"^S- ^28. Diversity where he has no eve, and where 

nU'liror''V. n • ^"S*^* *^>'®'^"^"'''^'^C'*o-J«c.3B7. sBulst. 95. sKeb.loi. Bro. 
•SiIj. smS,!^^^^^^^ F.N.B.94.note(c). 2 Wooddes. 41 5. l|See Liddard v. Kain, 

B^JleffieVifv.'*' V^^ plaintiff declared, that the defendant sold him a horse 

Burroughs. * ^"^'^ » ^^y and place, ct adlunc et ibidem 'isoarrantizavit equum 

prcedict, to be sound wind and limb, whereupon he paid hi» 

money, 



(E) Actions on the Case for Fraud. (Warranty.) 99 

money, and avers the horse had but one eye, Sfc, on plea nmi 
ivarrantizavit, the plaintiff had a verdict : and it was objected in 
arrest of judgment, 1. That the want of an eye is a visible thing, 
whereas the warranty extends only to secret infirmities; but to 
this it was answered and resolved by the court, that this might 
be so, and must be found to be so, since the jury have found that 
the defendant did warrant. 2. As the warranty is here set forth, 
it might be at a time after the sale, whereas it ought to be part 
of the very contract ; and therefore it is always alleged warranti- 
zando vendidit; sed non allocatur; for the payment was after- 
wards, and it was that which completed the bargain, which was 
imperfect without it. 

[If there be an express warranty not respecting the soundness Buchanan v. 
of horses merely, but some distinct matter, as their age; and it 2XerraR'745 
be a condition of sale, that the horses, if conceived to be unsound, ii/^) ggg Poul- 
shall be returned in a limited time ; an action may be maintained ton v. Latti- 
by the buyer if the horses are not of the age they are warranted more, 9 Barn, 
to be, though they are not returned till after such time has &^-259.|l 
elapsed ; for the condition of sale applies only to the unsound- 
ness ; nor does the buyer lose his remedy, though, upon the 
seller's refusing to take them back, he sells them again to a third 
person, [a) 

Although on the sale of a horse there is an express warranty Adam r. 
by the seller, that the horse is sound, free from vice, 8fC. yet, if ? u^ gf\ 
it is accompanied with an undertaking on the part of the seller to ^^^J 
take the horse again, and pay back the purchase-money, if on 
trial he shall be found to have any of the defects mentioned in the 
warranty ; the buyer must return the horse as soon as he dis- 
covers any of those defects, else he cannot maintain an action 
upon the warranty. For the term trial in such case means a 
reasonable trial. 

It has been determined by the Court of Common Pleas, that' Fielder r. 
the seller of an unsound horse warranted sound, if it can be ^^''Hi?' . p 
clearly proved that the horse was unsound at the time of the sale, J^ iisee Curl 
is liable to an action on the warranty, without notice or return.] tis'v. Hannay, 

3 Esp. 82. Poulton V. Lattiinore, 9 Bam. & C. 259.tf 

II A temporary lameness which renders a horse less fit for ser- i<;iton v. 
vice is a breach of warranty of soundness. Brogden, 

4 Camp. 281.; sed vide 2 Esp. Ca. 573 . 

Roaring is unsoundness, if it is shewn to proceed from some gassett v. Col- 
disease or organic defect. lis, 2 Camp. 

523. Onslow V. Eames, 2 Stark. 81. 

A nerved horse is unsound. Best v. Os- 

borne, 1 Ry. & Moo. 290. 

Crib-biting is not a breach of a general warranty of soundness. Brennenburgh 

V. Haycock, Holt Ca. 630, 
A cough, unless proved to be of a temporary nature, is un- shillitoe v. 
soundness. Claridge, 

2 Chitt. R. 425. ; and see Ibid. 418. 

If a horse is sold with a warranty that he is a good drawer, Coltherd v. 

H 2 and 



100 

Puncheon, 
sDoir.& 

Rjran, 10. 

Richardson v. 
Brown, 
I Btng. 344. 

GeddesT. 
Pennington, 
SDow.&R. 
164. 

Cuwcll V. 

Coarc, 

I Taunt. 566. 

1 Camp. 82. 



Symonds v. 
Carr, I Camp. 
361. 



P&yne v. 
Whale, r East, 
874. 



ACTIONS ON THE CASE. 

and pulls quiet in harness, both parts of the warranty must be 
shewn by the seller to be true. 

A warranty as follows, « To be sold, a black gelding, five 
years old, has been continually driven in the plough, warranted," 
applies to nothing more than soundness, and not to having been 
driven continually in the plough. 

Wliere a horse is sold with a warranty of soundness, but there 
is a misrepresentation at the sale as to the place from whence the 
horse came, if the warranty is complied with, the misrepresent- 
ation will not vitiate the sale. 

Upon the breach of a warranty of a horse, the measure of 
damages, if the horse is returned, is the price paid for him ; if 
the horse is not returned, the measure of damages is the differ- 
ence between the real value and the price paid. If the horse is 
not tendered to the defendant, the plaintiff can recover nothing 
for the expense of his keep. 

Where two persons severally employed a dealer to sell their 
horses, and he sold them for an entire price, and warranted them 
sound ; it was held that the purchaser could not sever the con- 
tract, and bring an action on the warranty -against one of the 
sellers, in respect of the unsoundness of his horse. 

Where the seller warranted a horse sound, and in a conversa- 
tion subsequently said, that if the horse were unsound (which he 
denied), he would take it again, and return the money ; it was 
held that this was no abandonment of the original contract, and 
the vendee's remedy was upon the warranty. U 

(F) Of Actions on the Case for Injuries to a Man's 
Person, Property, Right, or Privilege. 

Vent 295. JF .4. rides an unruly horse in Lincoln^ s-Inn Fields, (being a 
3 kcl) 6^^' ^^^^^ "^"^^ frequented by the king's subjects, and unfit for 

S. C.'and 8c- ^^^^^ purpose,) to break and tame him, and the horse breaks from 
veral cases •^' and runs over B. and grievously hurts him, 8^c. B. shall have 
cited of actions an action against A. : for though the mischief was done against 

i.3« done '^^ ^^^^ °^ ^'^ y®' ^'"^^ ^^ ^^^ ^'^ ^^^^^ ^ bring a wild horse into 
to a man's ^^^^ ^ P^^^^» where mischief probably might ensue, A. must 
person by wild answer for the consequence of so ill an act. 

and ungovernable animals. An action for keeping a mad bull which gored the plaintiff, &c. 
^^:ui n '" , r.^^ *^"'"^* ^^ ^"^ge'l '" the declaration that the defendant knew 
ttattne bull was mad. Ibid In all cases where the mischief is done by animals mansuetcB 
mnawttie owner must be shewn to have had notice of their viciousness before he can be 
SEI^-k" L "°"? must be set out in the declaration ; but as to animals /^r* nature, 
SSTJ^? ^l ,bT/^'''".nr 'V^''^^'^?'■ «"y ''^'"^?e t^'ey may do, wUhout notice. Ld. Raym. 
SL ir~>» . A '^ 'F"?? plamtiff allege m his declaration that the defendant /enow- 

2Si?L?»1fl!^"l°'"*^ **? '"/^ '^^P ""^ ^° bite mankind, this allegation must be strictly 
ErSrfji^t l"^* / ^? declaration would be good if it alleged generally that the defend- 
ffiS^Hlil^^Mt^^^^^ l!'^f'^' '^' --^^ disposition.^ufge v. c'ox, I Stark. .86. 

t^'u^Jo' ^' -{^ "^^" ^^y* H^ of wood cross a highway, though a person 
H«; there ^^y w.th care ride safely by (a), yet if by means thereof my horse 

stumbles, 



I 



(F) For Injuries to a Matins PersoUy Propertt/, <§,t. 101 

stumbles, and thereby I am wounded or hurt, I shall have action be a want of 
on the case. ordinary care, 

in such case 
the action will not lie. Butterfield v. Forrester, 1 1 East, 60. Though the primary cause of the 
damage may be the misfeasance of the defendant, yet if the proximate cause be the plaintiff's 
unskilfulness, he cannot recover. Flower v. Adam, 2 Taunt. SM.JI 

For an injury accruing to a man in his (a) real estate of free- ^°'^- ^^"^v. '°^* 
hold or inheritance, case will lie ; as, \i A. levies a fine, suffers fee jn'^r^ft for 
a recovery, acknowledges a judgment, recognizances, statute me refuses to 
merchant, or staple, in my name, I may have an action. execute the 

trust, I have 
no remedy but in chancery; but, if he enfeoffs another, an action on the case lies. Roll. 
Abr. 108. 2 Vent. 27. So, if the officer refuses to enrol a bargain and sale. Sid. 209, 
2 Bulst. 336. 

If a parishioner sets out his tythes of hay duly, and requires Roll. Abr. 109 
the parson to carry them off his land, but he does not carry them 5 Burr. i89i, 
off in a convenient time, per quod the grass where the hay lies is USee Williami 
impaired by the hay's lying upon it, an action upon the case lies ^"^^ p' 
against the parson, ^„/[^ y^^^;, 

(G g). Vol. VIII. II [The parson is not obliged to take tythe of grass the day it is cut, but may 
let it lie there long enough to make it into hay. Stra. 245.] 

If a man who ought to enclose against my land does not Roll. Abr. 105. 
enclose, per quod the cattle of his tenants enter into my land (*) Or the cat- 
and do damage to me, I may have an action on the case against *^^ of any other 
k;.^ /j.\ person. [The 

*^"^-(^) . ^ action can be 

brought only against the tenant in possession. 4 Term R. 318. Supra, (B).] Ij Unless it can 
be shewn that the landlord is actually bound to repair. Payne v. Rogers, 2 H. Black. 350. ; 
and see 4 Taunt. 649. A person who has suffered loss in consequence of the decay of sea walls, 
which a corporation is directed to repair under a grant from tne crown, may sue the corpo- 
ration for damages. Henly v. Mayor &c. of Lyme, 5 Bing. 91.|| 

Ijlf A. sends his horse to B. for the night, and B. turns it out Rooth v. 
after dark into his field, separated from a field of C. by a fence, y^^^°"'o . 
which C. is bound to repair, and the horse, from the bad state of ^g 
the fence, falls from one field into the other and is killed, B. may 
maintain an action against C, and recover the value of the horse, 
and this although B. is a gratuitous bailee. || 

If A. being a mason, and using to sell stones, is possessed of Cro. Jac. 567. 
a certain stone-pit, and B. intending to discredit it and deprive Roll.R. I62. 
him of the profit of the said mine, imposes so great threats upon ' * 
his workmen, and disturbs all comers, threatening to maim and 
vex them with suits if they buy any stones, so that some desist 
from working, and others from buying, S^c. A. shall have an 
action upon the case against B., for the profit of his mine is thereby 
impaired. 

If a man menaces my tenants at will of life and member, per ^o\\. Abr. 107, 
quod they depart from their tenures (c), an action upon the case j^e threaten- 
lies against him. ing, without' 

their departure, is no cause of action. Roll. Abr. 108. Where a copyholder may have case 
against his lord for cutting the tops of trees, for not admitting on a surrender, or for not hold- 
ing a court, vide head of Copyhold. 

II If a man discharges guns near my decoy-pond with design to Keeble v. 
damnify me by frightening away the wild fowl resorting thereto, f J^E^^^t"^'-'! 

H 3 and ** ' ^' * 



lot ACTIONS ON THE CASE. 

and the wHd fowl are thereby frightened away, and I am clamni- 

ficd, nn action on the case lies against him. 
Ilaanam ▼. It is to be observed tliat wild fowl are protected by statute 

Mockett, 25 H. 8. c 1 1. and are a known article of food ; but an action 

9 Bam. & C. jo^s ^ot lie for discharging guns near the plaintiff's rookery, and 
"^ thereby disturbing the rooks, for they are birds ^r<a? nalura, of 

destructive habits, and not protected by any act of parliament, 

and the plaintiff can have no property in them.|| 
But for thw If a commoner, who hath a right to common by grant or 

■ Mgho d of prescription, be disturbed by the lord or a stranger in the enjoy- 
g|""*^*"*^ ment, lie may have an action on the case. 

4 Mod. 17*5. 6 Mod. 19. Ld. Raym. 1225. Salk. 170. pi. 3. 364. pi. 5. Skin. 214. Lutw. 
74. 101. 

1 Roll. Abr. [If a man has a private way over the land of another, and is 

109. Cro. EUi. obstructed in the enjoyment of it, this action lies, whether he 
« RoH Abr da'^i it by express reservation in any modern deed, by grant, 
140. 1 Venu-. by prescription, or by operation of law. This easement may be 
874. Com. 7. obstructed in an actionable manner, not only by slopping up the 
In an action ^^y q^ passage, but by ploughing up the land over which the 
^Dot repair- ^^ ^*®^* ^' *^ sufficient as against a wrongdoer"(a), for the declar- 
ing a private ation to allege generally that the plaintiff was lawfully possessed 
road leading of a certain tenement, and by reason thereof entitled to the way 

through his jj^ question, without deducing a regular title from any person 
crotind. It IS • j • r o o J r 

efficient to seised m fee. 

charge him as occupier upon h'ls possession merely. Rider t. Smith, 3 Term R. 766. %a) And 
to also in declaring against the owner of the soil, the phiintiff may declare on his possession. 
9WiU.S8und.n4.a. no^ii.jl 

1 RdL Abr. If any person erects a smelting-house, or works for making 

mitt^i Burr. QQ^sfort's, or such like, the vapour and smoke of which spoil the 
835. ISeepwi g^^ss or com, or injure the cattle of his neighbour, it is a nui- 
(G), and aUo sance to the land for which this action lies.] 
tit. Nttttanct.\^ 

For dm tide If A. hath a mill by prescription which he hath used to repair, 

Ro!l!Abr*i*07. ^"^ *^ ^^'^.^ ^^^ ^^^ tenants of the manor, time out of mind, have 

Dany.Abr. 5,' ground their corn and grain spent in the houses of the tenants of 

«. and Carth. the said manor, if one of the tenants grinds his corn elsewhere, 

filLi^™'*!' \' ^* ^^^°^^ ^^^^ *" ^'^^"^ ^ '^^ '^°^^ against him. So, if A. by his 

5i<?*pL 5. prescription has a mill on his own land, and B. erects a mill on 

889. pL 25. "^ own land, if by this ^.'s mill receives any prejudice by having 

the water stopped or drawn away, or having too great a quantity 

°^^ater run on his mill, by which it cannot grind as much as it 

used to do, A, shall have an action on the case against him. 

1^51^7?^' k ^ °' "^^ ^^^^ ancient pits which are replenished by a rivulet, 

"® "^*y cleanse, but cannot enlarge the channels leading to them 

to the prejudice to another ; if he does, he is liable to an action 

^^ on the case for diverting the water.] 

5Il?6^ka«. v}^^ the owner of land through which a river runs enlarge a 
w^, ndm <^"^nel of certain dimensions, through which the water had been 
ig^W. y^J° J®^ before any appropriation of it by another, and 
« Ph«. . Uiereby divert more of it to the prejudice of a land-owner lower 

down the nver, who had at any time before such enlargement 

appro- 



• Prioe,!. 



(F) For Injuries to a Man*s Person, Properlify S^^. lOS 

appropriated to Iiimself the surplus water vhich did not escape 
by the former channel, case lies against him. 

But the plaintiff in such an action must allege, and prove that Williams r 
he has sustained an injury from the want of a sufficient quantity Moriand, 
of water. If this is shewn, the action may be maintained, though 2 Barn. & C. 
the plaintiff has not enjoyed his mill precisely in the same con- ^^o. 4 Dow.* 
dition for twenty years. || Sa^u'nckrs t. 

Newman, 1 Barn. 8c A. 258. And see Greenslade v. Halliday, 6 Bing. 379. 

[If a man have an ancient ferry, and another set up a new Blisset v. 
ferry so near to it as to draw away the custom, case lies; for he ^ '^'p Vj*" 
who has an ancient ferry is compellable by law to keep boats, Sfc. jj^jj' j^j p"^ 
and therefore the law having imposed an obligation upon him, 76. 
protects him in the exclusive enjoyment of the right. 

But an exclusive right to a ferry from A. to B. does not pre- Tripp v. 
vent persons from going by any other boat from A. directly to C l^rank, 4 Term 
though it be near to B., provided it be not done fraudulently, ^^' ^^^' 
and merely for the purpose of avoiding the regular ferry.] 

II In an action on the case for disturbing a f«rry, it is sufficient Peter v. Ken- 
to prove that the plaintiff was in possession of the ferry at the dall, 6 Barn, 
time when the cause of action arose. It is not necessary to & ^- 703. 
allege or prove the payment of any specified sum for passage 
money. 

Neglect of duty on the part of the owner of the ferry is no Ibid. 
answer to the action, although the crown may, on that ground, 
repeal the grant by a scire facias or a qiio warranio.\\ 

For injuries to a man's house or habitation, an action on the Kell. 98.b. 

ca5^ will lie; as i? A. hath the upper room, and B. the under , ', ' , ^'"^' 
1 J 1 . . 1 • r> L (C). 2 Leon, 

room, and A. neglects to cover his upper room, B. may riave an ^^^ j^^ ^j ^^^y 

action on the case against A. and thereby compel him to cover force li. to 

his upper room for the preservation of the timber of the under support his un- 

room. '^^^ '■"O"* ^""^ 

the preserv- 
ation of the upper room of A. Kelw. 98. ||See Peyton r. Mayor of London, post.\\ 

If the plaintiff declares that J". S. being seised of a messuage in Poph. 46. 
fee, 23 April, 32 Eiiz. did demise to the plaintiff a cellar from f,^)-,"'!'^'^ ""f 
week to week, Sfc. and that after, viz. 29 Julj/, 32 Eliz. J. S. did juj^^.i! i,i the 
demise to the defendant a warehouse, being right over the said Court of Ex- 
cellar, to hold from week to week, ^c. and that the plaintiff being chequer, and 
possessed of the cellar, and the defendant of the said warehouse, ^, ™ c '" 
and the plaintiff then having in the said cellar three butts of sack, q Leon. 93 a-i. 
of the value of 40/. 4'c. the defendant, 30 Jidi/, 32 Eliz. did place S. C. 
so great a weight of goods in the said warehouse, and thereby did 
so over-burden the floor of the said warehouse, that by force and 
weight of the said burden, the said floor on the said 30 Juli/ 
broke, and the said goods did fall upon the said butts, and broke 
the same, ^r. and the defendant pleads that a short time before 
the floor did sustain as great weight as this, and the warehouse 
was let to him to lay in thirty ton weight, and that he had placed 
there but fourteen ton ; and that what damage had happened to 
the plaintiff, was by reason that the floor at the time, as also 
before the lease to him made, was rotten, and the wall whereupon 
the floor lay so decayed, that the said floor liroke, Src. for want of 

H 4 repara- 



104 ACTIONS ON THE CASE. 

reiiarations before the lease to him made; the plaintiff shall have 
his judgment, for it is expressly alleged that the floor, by the 
weight of the said merchandize, did break, and that is not tra- 
versed but answered argumentatively only, viz. that it did bear 
more l>efore, ngo, ^c. and though it was ruinous when the 
defendant took it, yet if it fell by reason of any weight by the 
defendant placed there, he must answer for the consequence. 
For Um cum It was formerly holden, that if a fire broke out accidentally in 
on thb had, n man's house, and raged to that degree as to burn his neigh- 
«Mr DaiiT. hour's, tl>at he in whose house the fire first happened, was liable 
•nd sis 'is *o *" ^^^'^ ^ '^'^ '^^^^ °" ^^^ general custom of the realm, quod 

&ih'.°i: Lr^"^ '^"'°' '""" "'"" *'• , :::z^i^- 'VA-, 

6 Ann. C.31. But now by tlie 6 Ann. cap. 31. § 6, 7. it is' enacted, that " no ' 

$6, 7. M action, suit, or process whatsoever shall be had, maintained, 

roa.'Ic'pcnw^ " °^ prosecuted against any person in whose house or chamber 
tualbj loAnn. " any fire shall accidentally begin, or any recompense be made 
c H. $1. "by such person for any damage suffered or occasioned there- 

Co. Lit 57. iL « jjy^ ^^^ provided that nothing contained in the act shall extend 
°* ' ^ ' "to defeat or make void any contract or agreement made be- 

" tween landlord and tenant.";^ ' ; . , /^^, fVr*~ 
Pc)ton T. II If the plaintiffs house in Cheapside adjoins the defendant's 

Mayor of house, and the defendant pulls his house down, and in conse- 
^^?~;^'^£; quence thereof the plaintifjp's house in part falls, the plaintiff 
7g^, ' cannot have an action against the defendant, unless he allege and 

prove a right to have his house lean against and be supported by 
the defendant's house. But if the defendant pulls his house 
down without giving proper notice to the plaintiff, so that the 
plaintiff may protect his house by shoring it, it seems an action 
lies. II 
Cro.Car. 187. If the plaintiff declares that he was and is yet possessed of a 
8 C*lJhKiBed ^^^^ ^^^ several years adtunc et adhuc ventur. of and in a house, 
juogea. ^^j ^j^^^ j^^ demised the same to the defendant for six months, 
and that after the six months expired, the defendant being per- 
mitted to occupy the said house for two months longer, pulled 
down the windows, Spc. this action well lies, in regard that the 
plaintiff is chargeable over in an action of waste. 
Yomgv. flThe owner of a house may have an action on the case 

8p««'» against his lessee for opening a new door, if the reversionary 

I45^^t«* '"^®*"<^s' >s injured by it, although the house itself is not weak- 
iMto.& enedorinjured.il 
Malk. 350. 405. 

fiwthbf'tiile'^ ^^ °' ™^.*^^^^ *" ancient house, and another builds a house so 
JVWMlie«,«nd"f°'" ^^^^ ^^^ windows are darkened, he may have an action on 
Daav. 805. '^ <^^* against him. (a) 

2!?l;i*?' ,?xT''/«' f Mod. 116. 313. See Ld. Raym. 392. 713. 2 Salk. 459. pi. 4. 
!S- f„ I'll I' ^"^ ^'» * "•"" ^"^*^^ a ^o"se so near mine as to cause the 

jfaloWluponniyhouK. Roll. Abr. 107. 2 Leon. 93. S. P. [i Stra. 645. Fortesc. 

{SITr™ • V^^^. '^"^'^"^ window has been stopped up for twenty years. 
oi«,3Ump. It 103^3 jt3 privUege, and the owner cannot sue his neighbour 

for 



(F) For Injuries to a Maris Person, Property, S^c. 105 

for doing an act which was no nuisance while the window was 514. And 
stopped up, and which only became so by a new window being v^u[^ ^ j 
opened where the old one had been. l,|gn stopped 

up and a blank wall built for the space of seventeen years, the privilege was held to be lost, so 
that the owner could not open windows again, and complain of an obstruction by his neigh- 
bour made while the blank wall was existing. Moore v. Rawson, 3 Bam. & C. 332. ; and see 
1 Moo. & Malk. 350. 

But if an ancient window be enlarged, although the enlarged Chandler v. 
portion of it is not privileged, yet the adjoining landowner cannot Thompson, 
obstruct the passage of light and air, to any portion of the space '^' 

occupied by the ancient window ; and it is no excuse for doing 
so, that more light and air is admitted through the unobstructed 
part than was anciently enjoyed. 

The owner of ancient windows cannot by altering the purposes Martin v. 
for which his house is used, acquire any extended right against Goble, 
his neighbour. Therefore where a building, which had been for ^ ^a™P-322. 
twenty years used as a malt-house, was converted into a dwelling- 
house, it was decided that the owner was entitled only to the de- 
gree of light necessary for making malt, and not to all that 
might be necessary for domestic purposes. 

A title to lights cannot be acquired as against an adjoining Daniel t. 
proprietor by twenty years' enjoyment of them, if it appear that North, 
during all that time the adjoining premises have been occupied ^ ^ *•' ^^^* 
by a tenant, and there is no evidence of the proprietor having 
any knowledge of the enjoyment of the lights ; for without his 
knowledge a grant of the easement cannot be presumed against 
him. 

And it was held the same where the land adjoining the lights Barker v. 
had been glebe land, in the occupation of the rector ; for the 4 b^^^^'a 
rector as a mere tenant for life could not grant the easement, and 579. * 
consequently a grant could not be presumed. 

But if it appear that the adjoining premises have been occu- Cross v. Lewis, 
pied by a tenant for twenty years, and it does not appear how Lg ^VT g^ 
they were occupied prior to that tenancy, and the lights have Ry.'234. 
been enjoyed thirty-eight years without interruption, a presump- 
tion of grant may be made, since during the eighteen years after 
their commencement nothing appears to rebut the presumption ; 
and it makes no difference that the lights were not opened at the 
extremity of the party's land. 

If the owner of a house divide it into two tenements, and Riviere v. 
demise one to the defendant, he is liable to an action on the case ^°^^'"' * ^y* 
for obstructing windows existing in the house at the time of the &^oo-24.i 
demise, although of recent construction, and though there was 1 Price 27. 
no stipulation against the obstruction. || 1 Moo. & 

Malk. 396. 

[If a man has a right to sit in a particular pew in a church. Stocks v. 
and is disturbed therein, he may have an action on the case, ^oo''^ ^^.^'■™ 
Such right may be claimed either by prescription as appurtenant q'^^ g*^^ ' ^* 
to a messuage from keeping it in repair ; or under a faculty (a) 1 b. E. L. 329. 
from the ordinary ; or, perhaps, under an allotment and agree- Kenrick v. 
ment with the minister and churchwardens, especially where the Taylor, iWils. 
church is rebuilt. In all cases it seems necessary to claim the f^^' umnte?™ 

pew 



10(> ACTIONS ON THE CASE. 

, iicw ns appurtenant to a messuage in the declaration, {b) Where 

SSl^te this action is brought against a stranger or wrong-doer, it is 
ptaamed. sufficict.t for the plaintiff to allege in his declaration that he is 
5T«raiIt898. entitletl by prescription to the pew in question, as appurtenant to 
A fiioilry to • ,^j^ niessuage, without further stating the particulars of his claini. (c) 
hS!i U not" Hilt against the ordinary, wiio has pHrnd facie the disposal of all 
good: nor is a the scats in the church, a title or consideration must be shewn m 
prcKription m ,1,^ declaration and proved ; as a faculty from one of his prede- 
K'^iTtTm** censors having built at a distant period, or by due authority, such 
r! 488. I n. E. pew, or having constantly repaired the same. 

L. S3 1, jjlt mu«t l)c npinirtcnnnt to a house or messuage in the parish. Mainwanng v. Giles, 
5Btfn. & A. 35«.; and see Forrest, 14. Byerlev v. WincUis, 5 Barn. & C. l.|| See Cross v. 
adter, 3 Term H. 63y., in which case the King's Bench held, that the sentences in the eccle- 
Mttiral courts were not conclusive evidence of the right. But that case does not seem to 
itfbrd anv gcncrul rule, for the two superior ecclesiastical jurisdictions appear not to have de- 
cMed po'iitivcly on the right. 3 Wooddes. 196. (A) 1 Wils. 526. 1 Term R. 431. (c) An 
uninterrupted [Hjssetwion of the pew for thirty years is presumptive evidence of a prescnptive 
right; but that presumption may be rebutted by proof of the non-existence of the pew before 
that time. Griffith v. Matthews, 5 Term R. 296. 

Godb. SCO. If a parson deface a grave-stone or coat-armour in a church, 

Cto.Jac.367. jjjjs action lies, notwithstanding the injury l^e wilful and direct; 

for in this case, as in that immediately preceding, trespass vi et 

minis cannot be brought ; because the freehold of the church is 

in the rector.] 

Spooncrv. || Where, however, a person wrongfully removed a tombstone 

Brt-wstcr, from the church-yard, and erased the inscription, it was lately 

sBii%. 136 jjgjj j|,gj ^j^g erector of it might maintain trespass against him.|l 

As to the torts and injuries affecting a man's personal property, 

and for which an action on the case is the proper remedy, they 

are so many and so various in their kinds, that they cannot well 

be laid together; I shall set down only some of them here, and 

such as may govern in like cases. 

p^ y^ [Fraud and deceit in the defendant, and damage to the plain- 

Freemao, tiff, are a sufficient foundation for this action, though no benefit 

s Term R. 51. accrue to the defendant ; therefore it was holden by three justices 

!-*JJ* V^""*" °^ ^^^ ^"'"^ °^ ^* ^•' against Grose J. that it would lie for a 

."Tis's. i* ^*'^^ affirmation respecting the credit of a third person, made 

Without fraud with intent to deceive the plaintiff*, and by which he was injured, 

and an intent though it did not appear that the defendant was benefited by the 

to weave, deceit, or tiiat he colluded with him of whom he ijave the ficti- 
thia action. It .• \ ^ -, * 

•eeM, cannot ^^^^^ character.] 

be mvatained ; the representation must be made maid fide. Haycraft v. Creasy, 2 East, 92. 
Hoh*» Ca. 387. Sec Lord Eldonh observations on the case of Pasley v. Freeman, 6 Ves. 186. 
See aUo Ta(>p v. Lcc, 3 Bos. & Pull. 361. If, however, the representation of the defendant is 
fidae to hh knowleiigc, the platntifT need not show any intention on the defendant's part 
to injlire him. 7 Bin^. 105. if the representation is fraudulent, and is made with reference 
to tlw pbiotiflr* o|>enmg an account with the party as a gaieral customer, and the plaintiH", 
ia coMSqMMc of it, tells gootis from time to time to the buyer, and is afterwards a loser 
%j yjm, CMS Kc* for the deceit, although the buyer pays for the first parcels of goods, on the 
^^ 1 of which the reference is made. This liability, however, is to be limited within a rea- 
dme, and to a reasonable amount. Hutchinson v. Bell, 1 Tannt. 558. But if the vendor 
generally of the defendant concerning the buyer's circumstances, he cannot maintain 
the action if the buyer pays for the particular goods which it was in contemplation to sell at 
-iMl IIbk the rcprewntation was made, though the buyer becomes insolvent and docs not pay 
fcr Mkv goods Mibwquently sold. Dc Graves v. Smith, 2 Camp. 533, : and see 2 New R. 24 1. 
«i Price, 56. 7Pricc,5«.|| 

li Where 



(F) For Tniuries to a Man^s Person, Property , 6^c, 107 

II Where the vendor of a public-house, pending the treaty, made Dobell v. 

deceitful representations as to the amount of business done at, S^-c. ?n^^"^V p 

whereby the plaintiff was induced to give a large sum for it, it was ggs, 
held that the latter might sue for the deceitful representations, 
although not noticed in the conveyance or agreement of sale. || 

If a man razes the name of the obligor out of an obligation. Roll. Abr. loo. 

and in the room thereof puts in the name of J. S. and after sues ^9'" cheating 

him upon this obligation, J. S. may have an action on the case. q^.^ g^j^, '^^ ^ 

Co. Ent. 8. F. N. B. 95. Moor, 776. For keeping a dog, knowing him to be accustomed to 
bite sheep. Danv. Abr. 19. [If he afterwards bite a hoi*se ; for the owner ought to have 
destroyed him on notice of the first mischief. Ld. Raym. 69. That he hath done so twice 
before is sufficient proof of usage. Dy. 236.] ||Seean/^, p. 100,, and sCarr. & P. 138.|| For using 
the same mark which the plaintiff hath used to set to his cloths. Poph. 144. Cro. Jac. 471. 
S Roll. R. 28. iJSykes v. Sykes, 3 Barn. & C. 541. acc.|l 

If A. takes my cattle and drives them into ^.'s close, where Roll. Abr. 90. 

tliey do B. such prejudice as subjects me to B's action, I may Lane, 67. 
have an action o?i the case against A. 

II If a man place dangerous traps baited with flesh in his own Townsend v. 

ground, so near to a highway or the premises of another, that Wathen, 

dogs passing along the highway, or kept in those premises, will 9 East, 277. 
probably be attracted by the scent into the traps, and his neigh- 
bour's dogs are so attracted, and thereby injured, an action on 
the case lies against him. 

The court of C. B. were divided in opinion on the question, Deane v. 

whether it was lawful for the owners of woodlands to set dog Clayton, 

spears in them for the preservation of his hares, the spears being ji^oof *203 *• 

all more than fifty yards from the public pathway, which passed and see 

through the wood, and public notice being given outside the 2 Stark. 317. 
wood. 

And where a trespasser had knowledge that spring guns were Ilott v. Wilkes, 

set in a wood, although ignorant of the particular spots where ^ Barn. & A. 

they were placed, it was held that he could not maintain an action ^°^' 
for an injury received from treading on one of the guns. 

But it is otherwise if the plaintiff has no knowledge. Bird y. Hol- 
brook, 4 Bing. 1 Moo. & Malk. 595. 628. By 7 & 8 G. 4. c. 18. $ 1. setting spring guns, man 
traps, &c. is a misdemeanour, except when set in dwelling houses. 

The law requires of persons keeping instruments of danger, Dixon v. Bell, 
that they should keep them with the utmost care ; therefore where f gg *" 
the defendant being possessed of a loaded gun, sent a young girl 
to fetch it, and gave directions to take the priming out, and this 
was done, but nevertheless a damage accrued to the plaintiff's 
son, in consequence of the girl presenting the gun at him and 
drawing the trigger, when it went off, it was held that defendant 
was liable to an action on the case.|| 

If a man lend or hire another's horse, and for want of safe Cro. Eliz. 777. 
keeping the horse die, the owner may have an actio?i on the case ^*^* Owen, 52, 
to repair the damage sustained by the negligence of the borrower, j^^^.' jg. 
So, if a man lend another sheep to tath his land, and if by the Godb. 72. 
negligence of the borrower they are drowned; so, if a man Doci.Sf Stud. 
lend another a horse, who puts him into a ruinous stable, which M^"{«f'"u^^V 
tumbles in upon him and kills him («) : or if a man over-ride a 'i \viS)n°°* 
horse lent or hired to him, in all these cases an action will lie; 1 Bam. &'a. 

but, 59.11 



108 ACTIONS ON THE CASE. 

but, if the stable had fallen by a violent tempest, or the horse died 

of any disease, then had the hirer or borrower been excused. 

Oodb. 885, If ^' obtains judgment in a debt against B. as executor to his 

sRoU. R.31S father, and thereupon A. takes out ajerifadasy but before the 

Mod. 186. sheriff can execute it B. secrete etfraudulenter sells, removes, and 



[Thb lart MI- disposes of all the testator's goods, so that the sheriff is forced 
uin* tL"c"n'. to return nuUa bona, ^c. an action upon the case lies^ against^.. 



thority roain- 



tnry.] for the sheriff could not return a devastavit; and if this action 

does not lie, the party is without remedy. 

Garth. 3, 4. If ^' declares that he had obtained judgment against J. S. for 

Smith and 100/. and that 100/. more was due to him for rent arrear; that 

Tonstall, ad- |,g intending to take out execution, and also to bring an action of 

judgcil^on^e^ debt for the rent in arrear, (the said J. S. being then possessed of 

3^ffii^ed in goods and chattels sufficient to discharge the whole,) which being 

the House of very well known to B. (the defendant) he, by covin conspiring 

Pccn. ^ith the said J.S. to defeat the plaintiff of his execution, and of 

recovering the money for rent arrear, procured the said J. S. to 

confess a judgment for 160/. (of such a term) to one J. N. uhi 

revera the said J. S. did not owe any thing to the said J. N. and 

that he sued out execution on this feigned jndgment, by virtue 

whereof he seized all the goods and chattels of the said J. S. 

which he esloined to places unknown, and converted to his own 

use, by reason whereof the plaintiff lost his debt ; the action 

well lies. 

Leon. 240. Also for injuries done to a man with respect to his wife, as by 

Noy, 106. having criminal conversation with her ; with respect to his child, 

I k\^ iO ^ ^y enticing him away, or by enticing away his servant (a); or 

by aeducing ^^ ^Y servant without cause or licence departs from my service, 

Im daughter, and J. S. knowing him to be my servant, retains him in his 

per quod $er- service, and so keeps him, an action lies. 
vitium tmtitit. 

The right to which action seems to be extended to one standing in loco parentit. But in either 
case if the daughter be of age, acts of service must be proved. 2 Term R. 166. 5 Burr. 1878. 
1 1 East, 22. If under age the relation of master and servant must subsist at the time of the 
•eduction. Dean v. Peel, 5 East, 45. In actions of adultery the proper form is trespass ; and 
for the other injuries adverted to in the text, satisfaction may be had in that form of action. 
Cowp. 54. sWils. 18. See 2Term R. 1C7. Ld. Raym. 1032., and the remarks thereon in 
sWoodde«.«45, 246. n. ||Sce tit. Trespass (C), VoI.VII.|| (a) But where a servant had 
covenanted to work at a trade for a limited time, under a penalty, and having'quitted his place, 
tbeaatter sued him and recovered the penalty; this was holden to discharge the second 
BMter fipom an action for hiring him, the penalty being deemed full satisfaction for the loss of 
•emce. Bird v. Randall, 3 Burr. 1345. 1 Black. R. 375. S. C. jjSee tit. Master and Servant.\\ 

gttaktad v. [So it was holden, that this action would lie where the de- 

Wakeman, fendant falsely and maliciously wrote a letter to a person who 
'S M 8.C ^^ engaged to take the plaintiff as his wife, suggesting, that he 
IKA.US. ^^ ^^^ husband, by means whereof the intended marriage was 
«w.«o».S.C. frustrated.] 
It neiat, unleM »omc special damage could have been proved, that this cause would have been 



pronBrooly for the eccleuastical court, under the name of a suit for jactitation of viarriage. 

RolL Abr. 88. So, if a man digs a ditch in the highway, into which my ser- 
2Bul»i.334. vant falls and breaks his thigh, by which I lose his service for a 

long 



(F) For Injuries to a Man's Person, Property, ^c. 109 

lonff time, I shall have an action oil the case against him lb) for „ ,. t, 

.1 °l ru- • ^ Roll. R. 124. 

the loss of his service. (^^ S^^ ^^ dig. 

ging a pit, per quod J. S. for whose life I hold lands, was drowned. Keb. 847. 

Also actions on the case are proper for injuries in disturbing Vide Assump- 
one in the enjoyment of any right or privilege he is entitled to; ^''■* ^^** -^^*'* 
as, if the beadle of an hundred ought by virtue of his place to 
have by prescription certain gallons of beer of every brewer at a 
certain price, if the brewers will not suffer him to have it ac- 
cordingly, an action upon the case lies. 

II A declaration is bad which merely states that the plaintiff Thompson v. 
being a solicitor retained at a public meeting to submit a bill in Noel, 1 5 East, 
parliament, and that the defendant, the chairman of the meet- * ^ ' 
ing, and one of the committee appointed for despatch of business, 
conspired with others to disturb plaintiff in his employment, 
and procured other solicitors to be employed. || 

If a man ought to have toll upon the buying of cattle in a 7 H. 4. 44. b. 
market, if one buys cattle and does not pay the toll, an action on ^^' ^- ^^' ^- 
the case lies against him. ^^X^S^e. 

S. R. Bro. 57. S. C. Roll. Abr. ] 06. S. C. [In such case, assuvipsit is now usually brought, 
1 Term R. 61 6. 660.] So, if persons coming to market are disturbed, by which I lose my toll, 
an action on the case lies. 11 H. 4. 47. b. Roll. Abr. 106. Vent. 26, 28. Or if upon a^sale 
in a fair a stranger disturbs the lord in taking the toll, an action upon the case lies. 9 H. 6. 45. 
Roll. Abr. 106. [It is the proper remedy for a fraud upon the toll of a market. Cowp. 664.] 
IJBailiffs, &c. of Tewkesbury, v. Bricknell, 2 Taunt. 120.|| 

[An action on the case will not lie against justices of the peace Basset v. God- 
for refusing to grant a licence to keep an inn or ale-house.] schall, Esq. 

sWils. 121. 
[I In an action against a magistrate for a malicious conviction, Burley v. 
it is not sufficient for plaintiff to shew himself innocent of the Bethune, 
offence, but he must also prove, from what passed before the ^ Tf ""u 11°* . 
magistrate, that there was a want of probable cause. |j and see tit. ' 

Justices, and tit. Trespass. 

If my tenants within a certain seignorv ought time out of 43 E. 3. so. 

mind to go free to every market and fair to sell and buy goods ^o"-aw. 106. 

without payment of toll, and one takes toll of them in his fair or ya^j y'j p^j.j 

market, an action on the case lies against him. 2 Saund. 172. 

and the notes (5th ed.).|| 

If a man disturbs my steward in holding my leet, an action on ^^„ ^ ^^ 
the case lies against him. So if the 

lord's servants are disturbed in collecting his tythes. 19R. 2. 52. Roll. Abr- 107. So, if a 
&t"anger who has no right, holds a court in my manor, and by distresses, &c. so impoverishes 
my tenants that they cannot pay their rents, an action on the case lies. 13 H. 4. 11. Roll. 
Abr. 106. 

If a man hath the assize of bread and beer, fines, amerciaments, 38 H. 6. 9. b. 
and other matters of frankpledge, by the king's grant, and he Rojl. Abr. 106. 
distrains for an amerciament, and a stranger makes a rescue, an „ ju''" action 
action upon the case lies against him. the plaintiff 

declares that Queen Elizabeth did grant to him the office of steward of the manor of D. and 
that the defendants eundem plaintiff ad exercend. dictum officium, et vadia, feoda, commoda 
et proficua thereto belonging habere et percipere, vi et armis ivipediverunt, ^c. this is a good 
declaration, notwithstanding the catua cauians^vix. the interruption of the plaintiff to exercise 

the 



no ACTIONS ON THE CASE. 

the ofBcc. U Jaia to be done ri ct armit, for the causa causata, viz. the loss of the fees, is the 
LL^fthe .ction. 9 Co. 50. 4 Leon, 243. Hob. 180. Pahn. 46. 2 Brownl. 532. Cro. 
C«r. 377. 5» Roll- Kep- 139. 

9Co.88.Vent. If the sljeriff of the county, or his bailiff, execute a writ in a 
SM.8ko«r. »7. franchise or liberty of one, who by grant or prescription hath the 
^^•■*' *'** execution and return of writs, an action on the case lies. 
Cvrctt ▼. U But where the long established and recognized practice had 

SmJIpi^ been, that a writ of capias with a noti omittas clause issued in 
9 BM^ 530. ji^g ^^j.j instance, and was executed by the sheriff, within a par- 
ticular liberty, the bailiff of which had the execution and return 
of writs, without a writ of latitat first issued, and a return of 
mandavi halliro, Sfc.y it was held, that an action on the case could 
not be supported by the bailiff against the party suing out 
such writes; since under these circumstances he could not shew 
that he wrongfully, injuriously, and deceitfully caused it to be 
issued. II 

We are next to enquire for what wrongs and injuries com- 
mitted by officers and ministers of justice, and others, acting 
contrary to the duty the law lays on them, with respect to their 
trades and callings, an action on the case will lie. And therefore, 

1. Where an Action on the Case mil lie against Officers and 
Ministers of Justice, 

9 H. 6. 60, h. It seems agreed, that no action on the case (a) lies against a 
Roll.Abr.92. judge of a court of record for a wrong judgment, and that if it 
\\C 'p'p appears to have been an error of his judgment (i), he is subject 
350. URex v. ^ ^^ prosecution whatsoever. 

Jackson, 1 Term R. 653. Rex v. Borron, 3 Barn. & A. 452. Rex v. Bishop, 5 Barn. A. 612.j| 
(a) Not against a judge of the inferior court for taking insufficient bail. Hutt. 120. An 
actioQ Ues against a judge of the Stannary CJourt for refusing a plea which by law he ought to 
have accepted. 2 Roll. R. 498. per j'onet Just, cccteris absentibus ; but for this vide title 
BUU of Excepliom, (6) But for corruption they are punishable ; the judges in Westminster- 
hail, properly, by impeachment in parliament. 1 Hawk. P. C. 550. Inferior judges by inform- 
ntioo, attacnmcnt, &c. for which vide the heads ; also the head of Offices and Officers ; and 
t Salk. 396. where, per HoU^ the Mayor of Hereford, for giving judgment for his own lessee 
in ejectment, was committed.* 

• As to the immunity of the judges from prosecutions, vide 31 Ed. 3. st.4. c. 17. 

Leon. 189. If the plaintiff declare that he affirmed a plaint of debt in the 

court of B, against C. and thereupon caused C. to be arrested, 

and that the defendants (being the mayor, town-clerk, and gaoler 

of n. did conspire to delay the plaintiff in his suit ; and in part 

of his said debt had let C. go at large, without taking any part, 

this action will lie, for the not taking of bail is not the cause of 

the action, but the conspiracy. 

ME. 3.39. If the bailiffs in ancient demesne hold plea after the record is 

UkcMint' '^"^oved in banky by which the tenant loses his land there by 

Roil. Abr. 92. '«^overy, he may have an action upon the case against them. 

8^P« •c^ooy '"^^ the under steward of a court baron, for proceeding after a corpus cum 

emuA deRrared. S Leon. 99 adjudged. Against a clerk who had the custody of a record, and 

Riflrred it to be altered. Raym. 53. Sid. 77. Keb. 23. 346. Vide Lev. 64. 

4 Intt. 226. If an escheator returns a false office, contrary to what was 

Rol^AlM-%a. ^^"*^ ^y ^^^i"^» in prejudice of the party, an action upon the 

case 



1 



(F) For Lyurks to a MarCs Person, P roper ti/, <§^c. Ill 

case lies against him ; for in this he is barely an officer, and not 
a judge. 

If my servant is robbed, and he goes to a justice of peace and Leon. 323. 
prays to be examined touching the robbery, and the justice re- ^ji.^'^t- 27. 
fuses to examine him, so that I am thereby damnified, and can- But for this 
not proceed against the hundred, I shall have an action against vide title 
the justice; for the examination by him in this case is not as a Justices of 
judge, but as a particular minister by the act appointed for this ^^«c^. 
purpose, (c) 

{(I) If a summoner of the ecclesiastical court falsely and ma- Roll. Abr. 90. 
liciously colore officii sui to the intent to scandalize J. S. with the Carlian and 
fame of incontinency with A., and to put him to expense in the ^'Ul- Cro. Car. 
Ecclesiastical Court, cites J. S. to appear for incontinency with A., jon'gg gjg 
upon which J. S. appears, and is there charged by the judge with S. C. (d) Like 
it, and upon his answer discharged, by which he is put to ex- point in an ac- 
pence ; J. S. may have an action upon the case against the sum- ^'°" ^'nst 
moner upon such a declaration, though he be an officer of the dens for such a 
Ecclesiastical Court; inasmuch as it is alleged that 'he cited him presentment, 
falsely and maliciously et colore officii^ it shall be intended that he Cro. Car. 285. 
did it without process. ^^^' ^^■ 

Abr. 112. pi. 9. 2 Mod. 52. Vent. 86. Sid. 463. Lev. 292. S.P. 

(a) If a minister of justice hath a warrant to (a) attach (b) the (a)3Bulst.2i2. 
goods of another, and can do it and does it not, an actio?i tipon ^ ._' 
the case lies against him. S.P. per curiam, 

(b) So, if I shew J. S. to the sheriff, and give him a writ to arrest him, and he does not. 
Cro. Eliz. 873. per Walvisly. (c) But, if upon a capias utlagatum before judgment, the sheriflT 
neglects to extend or seize goods, &c. this is the king's loss, and the party shall have no 
action, though it was objected, the sheriff extending, &c. would have been a means to force 
the defendant to appear ; but it was said, that if it had been shewn that the sherift" might have 
taken his body, &c. there would have been more reason to support the action. 2 Vent. 90. 

If a sheriff makes a false return, as, if he return a cepi corpus For this vide 
and paratum haheOy or languidus, when the party is at large "^'-^^ ^x Sheriff 
without bail, an action on the case lies against him for the false ^^j,^ Actions. 
return : but if he had taken bail, though the party does not ap- 
pear at the return of the writ, yet no action lies against the 
sheriff; for by the 23 H. 6. c. 9. the sheriff is obliged to take 
bail. 

If the sheriff returns the tenant summoned in a real action 26 Ass. 48. 
where he was not, by which he (d) loses by default, an action lies li ^ V^^'u^f* 
against him for this. " acdonVthe 

sheriff is liable, vide head of Sheriff, {d) For the judgment should stand, and the party is put 
to his remedy against the sheriff. Moor, 349. Bro. Action sur Case, 5. Goulds. 128. 

[If a bailiff remove goods off the premises under a. Jieri facias Palgravev. 

before the landlord is paid his year's rent pursuant to the statute ^"'"^'ham, 

8 Ann. c. 17., case lies against him; and the action may be iiSce tit. ^t«/ 

brought at the suit of an administrator.] (K), 8.|| 

If at the petition of ^. and the rest of the creditors of 5. a com- 2 Roll. Rep. 

mission upon the statute against bankrupts is issued out against 47. But for 

B. and thereupon the commissioners sit, and offer interrogatories ^^^^ "^'' '^^''^ 

to C. and he refuses to be examined, and by them thereupon is and^GoalTnS 

committed to prison, and the gaoler suffers him to escape, A. Gaoler. 
may have an action against the gaoler for this escape. 

[If 



112 ACTIONS ON THE CASE. 

Ravenscroft [If a gaoler suffer a prisoner upon mesne process to escape, he 

▼. Eyle«, is liable to an action on the case, though the prisoner return the 

l^^' ^l*' same day to the prison, and the plaintiff proceed to final judgment 
iaj>€,m,lGaol aganist him.J 
and Gaoler^ and Sheriff.^^ 

Roll. Hep. 78. If a warrant upon a^fieri facias to levy a debt at the suit of J. S. 
^^oH-Abr. 94. i^ jirected to an under-bailiff of a liberty, and he by virtue 
AM^u thereof levy the debt, and after conceal the writ and make not 
and BaHif. any certificate thereof, an action on the case lies against the 

under-bailiff, because he has done a personal tort. 
Latch, 159. So, if a distress at the suit of ^. issues out of the court of C. 

Adjudged directed to J. S. (who is not the usual officer) to distrain the cattle 
"rroruTnV °^ ^' *^^-' °^ ^^^^ ^' should find pledges to appear at the next 
judgment in court ; and thereupon J. S. distrains the cattle of B. and after re- 
Cheyney delivers them to B. without taking sufficient security, Sec. and B. 

Court. jQgs not appear, 4'C' an action lies against J. S., notwithstanding 

he is no known officer, but pro hac vice only. 

Roll. Abr. 93. If a summoner of the ecclesiastical court, upon a premonition 

s Bulst. 266. directed to him by the ecclesiastical court to warn J. S. to pay 

12 Co'. 128. certain costs awarded against him by the court, returns to the 

Roll. Rep. 63. court, that he hath warned the said J. 5., by which the saidjl S, 

S.C. adjudged is excommunicated, where in truth he never warned him; J. S. 

between ^^^y have an action upon the case against him for this false return, 

Godfrey. though he be an ecclesiastical officer ; for the excommunication 

is a temporal as well as a spiritual disadvantage, as during its 

continuance he cannot bring an action, and is liable to an ex- 

communicatio capiendo. 

Sid. 276. \{ dijleri facias de bonis ecclesiasiicis of J". & be directed to the 

l^*Ss^^320 ^'shop of E. and he return qicod nulla habet bono ecclesiastical 

lA. Raym. ' which is false, an action on the case lies against the bishop for 

265.11 this false return. 

11 Co. 99. If upon a mandamus to restore J. S. to his place of a burgess of 

James Bagge's p, xiel causam nobis signif. the mayor, S^c. return a good cause, 
SS.'^So'^'an '^^^ matter of which is false, an action lies for the false return, 
action lies against the mayor and commonalty of L. for making a false certificate of a 
custom. Hob. 87. So, against the surrogate of a bishop, who makes a false return as to the 
custom of choosing churchwardens. 3 Lev. 362. Vide Garth. 227. 2 Salk. 428. pi. 1. 430. 
pi. 5. Ld. Raym. 391. Vide tit. Mandamus. [And note, that regularly an action on the case 
IS the proper remedy for all false returns. Doug. 153, 154.] 

beTween' ^^" ^^ ^^^ plaintiff declares, that within the city of London there is 

Turner and *" ancient bridge, and that by custom of the said city two officers 

Sr Samuel to look after it, called bridge-masters, by the citizens at a common 

Suriing, ad- hall assembled have been yearly chosen or continued ; and that if 

!^J^m ^Tu^ '^^"^ ^^^^*° ^^^ ^^^^ ^^'^ ^"^^^^ another for the remainder 
colli. Vaughan, of the year hath always been chosen as aforesaid, and that there 
and Vent. 206. are certain fees and profits belonging to the said office; and that 
S. C. upon a A. and B. were elected to this office ; that A. during his said year 
InBR!^^ „ ' 7^ "PO" a hall, by the defendant (being then lord mayor) 
firmed per called for the election of a bridge-master in the place of A. then 
totam curiam, and there the plaintiff and one J. S. as competitors stood for the 
St Ut. 53. said office ; and thereupon the question did arise, who had the 

greater 



(F) For Injuries to a Man's Person^ Property t S^' H^ 

greater number of electors ; and the plaintiff did aver his number g q. A.ml 
to be the greater ; and thereupon did request the defendant, that there the cus- 
according to the custom they might go to the poll, but the defend- torn was laid, 
ant did refuse to number the polls, and made proclamation that gjg(.j.Qj.g ^gj-g 
die electors should depart, and discharged the court, and J. S. go divided, 
was sworn ; per quod the plaintiff lost the profit of the place, <§•<:. that the plu- 
this action lies as well for this (a) injurious prevention of him ra^i^y ^^"^^ 
from obtaining the office, as for an hindrance of him in the , ^^^ ^j^^^ 
execution thereof; for qui destruit medium destruitjinem. the mayor 

ought to m'ant the poll, and that the electors were so divided, &c. And adjudged per cur. 
prcEter Vaughan, that the action lay ; though it was not averred that he would have been 
elected if the poll had been granted ; for the mayor did not do his duty, and the per quoad 
he lost the profits of his place is sufficient after verdict, (a) If upon a writ de coronatore 
eligend, the sheriff will not return him coroner who is chosen by the major part, an action lies. 
2 Vent. 26. Vide 2 Sid. 168, 169, &c. 3 Keb. 664. 859. Diversity between an office of govern- 
ment and an office of profit. 

A. declares that the king's writ issued, and was delivered to the Salk. 20, 21. 
sheriff of Bucks, for election of members of parliament in his &c. Ld.Raym. 
county ; that the sheriff made out his precept to the defendants, ^^a\^\\ 8. 
being constables of the borough of Ayleshurif, for the election of g^ -pri, 89. 
two burgesses for that borough, which was delivered, and the Cas. Temp, 
burgesses duly assembled to choose, ^c. and that the plaintiff Holt, 524. 
being duly qualified, 8fc. and ready to give his voice for L. and 1^J^° ^ ' ^' 
M. to be burgesses, Sfc. the defendants, knowing the premises, white et al. 
maliciously obstructed him, and would not allow or receive it, adjudged by 
and that without his voice two burgesses were chosen; it was ad- three judges, 
judged after a verdict for the plaintiff in B. B. by three judges Q^j^.^ho held, 
against Holt C. J. that the action did not lie. Their chief rea- that for every 
sons were, that this was a parliamentary offence, and properly injury an ac- 
enquirable there ; that to determine it here might occasion a t^o" i»y > *^'\^* 
clashing of jurisdictions ; that it did not appear that the party had jury jong'the" 
suffered any injury; that to allow of such actions would create a plaintiff; as it 
multiplicity of actions, to the great prejudice of officers ; and deprived him 
per Gould J. the officer is a judge, and therefore not liable to an of the greatest 
action; Siud per PowisJ. he is quasi a judge, and therefore has ^u^Yecf has 
a distinguishing power who to admit and who to refuse.' which is that 

of consenting to those laws by which he is to be bound ; that the parliament's having a juris- 
diction is no objection, especially in this case, where the grievance is, that the party is not 
represented; that the officer is neither a judge, nor quasi a judge; that the multiplicity of 
actions is no objection ; for if a man will multiply wrongs, it is but reasonable that actions 
should be multiplied, &c. And note ; the judgment was reversed in the House of Lords, 
according to Holt's opinion : Trevor C. J. and P7-ice and sixteen lords concurred with the 
judges o( B. R. the rest of the judges and fifty lords concurred with Holt. ||l Bro. P. Ca. 62. 
S. C. But though the judgment was reversed in the House of Lords, yet the lords did not 
proceed upon the broad ground which Lord Holt had taken in the court below. Lord Holt 
nad insisted that the action lay for the mere obstruction of the right ; but the lords, in the 
justification of their conduct, which was supposed to be written by Lord Holt, put it upon a 
different principle, the wilfulness, the maliciousness of the act. 8 St. Tr. 129. And subsequent 
cases have considered malice as of the very essence of actions of this kind, and upon that 
principle judges have adopted the decision of the lords in this case. Harman v. Tappcnden, 

1 East, 555. Drew v. Colton, Id. 563. Milward v. Sargent, Id. 567. Cullen v. Morris, 

2 Stark. R. 577.|| 

flln case against the sheriff of Sujfolk, the declaration charged, Barnardiston 
that the defendant maliciously intending to deprive him. of the ^" °*'*'"^' 
Vol. I. I office 



114 ACTIONS ON THE CASE. 

«Lct. 114. office of kni«r|it of the shire, made a double return. Upon a 
Pollcxf. 470. trial at bar, Twisdcti, Rainsford, and Wijlde held, and so dn-ected 
the jury, that if the return were made maliciously, they ought 
to fintl for the plaintiff; which they did with 800/. damages. 
On motion in arrest of judgment, Hnle C. J. being in court, he, 
Twisdeii and n^lde J. held, that forasmuch as the return was 
laid to he /also et malitiose et ed intentinne to put the plaintiff to 
charge and expense, and so found by the jury, the action lay. 

5 Lev 50 Judgment, however, was reversed in the Exchequer Chamber, 
iLutw.89. and that judgment of reversal affirmed in parliament. This 
7 St, Tr. 422. reversal gave occasion to the act of 7 & 8 W. S. c. 7. which should 
eScTr. 102. gggj„ Jo be a declaratory act, and which gives an action against 

the returning officer for all false returns mlfully made, and for 
double Teiuvns falsely, 'wilfully^- and maliciomlij made. 
Schinotti v. ^^ action on the case lies against a commissioner of the 

Bumstead, * lottery for not adjudging a prize to the holder of a ticket entitled 

6 Term R. 646. to receive it-U 

2. Wliere Case •will lie for Torts and Injuries committed hy Per- 
sons contrary to the Duty of their Trades and Callings. 

Roll Abr 8. ^^* ^^^ (^) delivers goods to a common carrier (/;), to carry 

Vide for this them to a certain place, if he loses them, an action upon the case 
title Carrier, lies against him ; for by the common custom of the realm he 

and head of ^^^i to carry them safely. 
Trover and o J J 

Convertion. (a) An action lies against a ferryman that refuses to carry passengers. Hardr. 1G3. 
Vide a special declaration against a letter-carrier for the non-<lelivei"y of a letter delivered out 
to him at the general post-office. Rob. Ent. 103. (i) So, against a lighterman, master cf a 
ship, or owners. Roil. Abr. 2. 2Lev. C9. Hob. 25. That the undertaking makes him a com- 
mon carrier. Cro. J;ic. 262. Sid. 245. Vide head of liniliuent. So, if they are damaged. 
Palm. 523. So, if he be robbed of them. 4 Co. 84. 2 Saund.SSO. [Tlie carrier is liable for 
every accident, except by the act of God, or of the king's enemies. 1 Term R. 35.] 

Roll. Abr. 3, 4. So, if an innkeeper refuses to entertain a guest, on pretence 
r^e h ad of ^^^ house is already full, an action on the case lies against him : 
Inns and Inn- ^^^ ^^ ^^ goods of his guest are stolen or lost in his house, ^c. 

keepers. 

Ld.Raym.2i4. [So, if a man suffer materially from the neglect or ignorance 
1 Danv. 77. of a common surgeon or apothecary ; aliter, if of a person not 
Iventfc^* making public profession of such business, for it was the plaintifTs 

8 East, 347,11 °^" ^'^^^^y ^° ^^^^^ t" one who was unskilled; however, upon an 
So, where a express undertaking, the action would lie, even in that case.] 
surgeon and an apothecary broke the callus of the plaintiflTs leg after it was formed, it appear- 
ing that It was done by their going out of the common course of practice, and in making an 
expenment with a new instrument. Slater v. Baker and Stapleton, 2 Wils, 559. 

R^lf Abr^l ^.^ * ^^^^^^ refuses to shoe my horse, or if he pricks him, an 

Saund.3i2. ' ^^''on on the case lies against him. (c) 

Roll. Abr. 10. So, if a farrier kills my horse with bad medicines, or by neglect 
49' That'an '" curmg him ; an actt07i on the case lies, without any express 
action lies promise. 

•gainst a barber for shaving the plaintiff »«.g/^eirf^ et inarixficialifer. 2 Bulst. 333. Vide Hobr 

211 



(F) For Injuries to a Man's Person, Property, ^c, 116 

211. 11 Co. 54. Saund. 512., that before SEWz. c. 4. no man was restrained from exercising 
any trade; but he that performed it falsely and insufficiently was answerable in an action. [An 
action cannot be maintained against a carpenter simply as such, and without any express con- 
sideration, for an injury sustained in conse()uence of liis not entering upon a piece of work he 
had engaged to perform. Elsee v. Gatward, 5 Term R. 143.] 

If a client receives an injury by the neglect or fiaud of bis at- y^^^ ^j^ 
torney, an action lies(r/); as, if an attorney suffers judgment to Attorney. 
go against his client by nil dicit, when he had a warrant to ('0 Winch, go. 
plead the general issue {e) ; so, if in a plea of land he makes de- ^^J r 1 P n'^r 
fault (^); or, if an attorney by collusion with J.S. and without gg' Ci-o, jac. ' 
any warrant from me, appears for me in an action of trespass at 695. Dyer,5C2. 
the suit of J. S. and suffers the inquest to pass against me by de- Stile, 42g 
fault, whereupon J. S. recovers against me, I may have an action ^ "^ J''a j 
on the case. rr«?"wiiethe? 

the judgment should not be vacated. Cro. Jac. 344. 695. sinst. 122. Keb. 89. 2koll. Abr. 724. 
Where case will lie against a counsellor, vide Roll. Abr. 10. 91. ||BIackstone expressly lays it 
down, " An advocate or attorney that betray the cause of their client, or being retained 
neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case 
for a reparation to their injured client." Books, c. 9. p. 164. Finch's Law, p. 188. Anil in 
the Year-Book, 11 Hen. C. 24. 55. it is laid down, " If one retains counsel and give him his 
fee to assist in the purchase of a manor, if he becomes counsel for another, or cliscovers his 
council, case lies;" which is cited by Lord Hcde., F.N. B. 94. notd. And in the Year-Book, 
14 Hen. 6. pi. 18., it is laid down by Paston J., " If a serjeant-at-law undertake to plead my 
cause, and do it not, or plead it otherwise than I inform him, whereby I incur damage, an 
action on the case lies ;" which is cited Bro. Abr. Action sur le Case, p. 69. Roll. Abr. Action 
6ur le Case, 6, 7, 8., and Com. Dig. Action on the Case for Deceit, (A) 5.; and see Broke v. 
Mountagu, Cro. Jac. 90. ace. Harrison v. \A\\m\ey,2\e?,.R.A?,S. per LovA Hardwiche ; and 
Bradish v. Gee, Ambl. 229. In the above instances there seems to have been a breach of faith 
in the counsel's conduct, and not mere negligence or unskilfulness. And in Fell v. Brown, 
Peake's Ca. 96. Lord Kenyan held, that an action did not lie against a barrister for unskilfully 
and negligently settling a bill in Chancery, whereby it was referred for scandal and imperti- 
nence, and the plaintiff obliged to pay the costs. In this case the Court of Chancery may order 
the counsel to pay the costs. Beames's Oril. 167. Mitford's Plead. 59. — In Turner v. Phil- 
lips, PeakeCa. 122., where an action was brought against a counsel to recover back a fee paid 
him, on the ground that he had not attended the trial. Lord Kenyan expressed himself strongly 
against the action, and it was settled. This, however, is no authority that the plaintiff might 
not have sued the counsel specially, showing a damage from his non-attend.ince, which 
seems the proper remedy in such a case, and not an action to recover back the fee.|| 

[It was holden to lie against an attorney for not charging a Russell v. 

person in execution at his client's suit according to the terms of Palmer,^ 

a rule of court, though it seemed to be rather an error of iud>j- i?o A'-^l^^' 
, ' f , . _, JO See Pitt V. 

ment than any actual negligence.] Yaldin, 4 Burr. 

20G0. Lee V. Ayrton, Peake's Ca. 1 18.fl 
II An attorney employed to purchase an annuity was held not Baikie v. 
liable to his client for not advising him that the annuity was void ^^^""'ess 
under the enrolment act, when the courts had not at that time de- 
cided on construing the act in such a manner as to render it void. 

An attorney is not liable except for crassa negligentia, not for Laidler v. 
a misconstruction of an obscure rule of court. Elliott, 

3 Barn. & C. 738. 

If an attorney employed for the vendor of an estate, in taking Ireson v. 
Counsel's opinion on the title, omit to state certain material deeds Pearman, 
in the chain of tide, and wrongly state a party to be seised in fgg "' 
fee when he was not so, and, in consequence thereof, the counsel 
advises that the title is good, and he would have advised other- 

I 2 wise 



116 ACTIONS ON THE CASE. 

wise had he known of the deeds omitted ; these facts are suffi- 
cient to justify a jury in finding the attorney guilty of negli- 
gence, so as to sustain an action. 
Reeve v. Where an attorney for the plaintiff suffered the cause to 

Righy, 4 Barn, be called on without previously ascertaining whether a ma- 
& A. 20'-'. terial witness whom the plaintiff had undertaken to bring into 
court had arrived, in consequence of which the plaintiff was 
nonsuited, it was held, that iu an action for negligence it was 
properly left to the jury to say whether he had used reasonable 
care in conducting the cause; and the jury having found in the 
negative, the court refused to disturb the verdict. |l 

(G) Where an Action on the Case will lie for a Nui- 
sance, and therein of the Inconvenience of multiply- 
ing Actions. 

Vide head of TT is clearly agreed, that for a common nuisance, which is an || 
Nuixances, offence against the public, either by doing a thing which 

R ii Ah ^RR^* ^^^^ ^° '^^ annoyance of all the king's subjects, or by neglect- 
110. 2 Roll. '"S ^° ^^ ^ thing which the common good requires, 7io action on 
Abr. 140, 141. the case will lie; for this would create a multiplicity of actions. 
Moor, 180. one man being as well entitled to bring an action as another; 

1 ri°' }^l and therefore in such cases the remedy must be by indictment 
9 Co. 113. 1 • f 1 1 • "^ ^ 

2 Brownl. 147. ^t the suit oi the kmg. 

Vaugh.341. Cro. Eliz. 664. 3Mod.294. Garth. 191. 451. Ld. Raym. 486. Salk. 1 5. pi. 1 7. 

Co. Litt. 5Q. But, if by such a nuisance I suffer a particular damage, as, if 

Keb 847 '*^^' ^y stopping up a highway with logs, S^c. my horse throws me, by 

s Jones, 157. which I am wounded or hurt, an action lies. 

Vide the authorities, tupra. Vide Garth. 191. 451. Salk. 15. pi. 17. what shall be such a spe- 
cial damage as will maintain the action. 

Dev^'' ^' JJ"^" action does not lie by an individual for an injury sus- 

2 Te°m R.667 *^'"^^ ^" Consequence of a county bridge being out of repair. 

Bush V. If A. or his servants, in repairing his house, place a quantity 

Steinman, of lime in the road whereby i?.'s carriage is overturned, A. is 

404?'" answerable in an action on the case. 

Matthews v. So, if the servants of a water-works company, in laying down 

West London pipes, leave rubbish in the street, without any light or watchman 

Water-works to warn passengers, and a coach driven by the plaintiff is thereby 

5 Sp?403 overturned, and plaintiff's leg broken, the company are liable to 

Jones V. Bird, »« action. 

5 B. & A. 837.; and see 1 Stark. 189. ; but see Harris v. Baker, 4 Maule & S. 27. 

H^Sam ^°' ^^ ^^ °^"^^ ^'^ ^ ^^"^^ ^° "^^ properly fence in his 

3 Camp. 398. ^'^^^ ^° ^^ '°.^^ ^^^^ ^"^ passengers, and the plaintiff falls down 
the area and is hurt, the owner is answerable ; and it is no excuse 
that when he took the house, and as long back as can be remem- 
bered, it was in the same state. 
Haraond v. So, if the owner of a vessel which is sunk in a navigable river 

f ?^°' c, . J^Slect to place a buoy over the wreck, and, in consequence, the 
1 uuDp.515. barge of another strikes on it and is damaged, he is liable to 

his 



(H) For Conspiracy f oppressive Prosecutions^ <§'c. 117 

his action, and this although he may have placed a watchman 
near the spot to point out the danger. || 

Also, an action lies for continuing a nuisance; as, where for Salk. lo, pl.3. 
erecting a nuisance 2 die Febr. the defendant pleaded a prior Carth. 455. 
action brought for erecting a nuisance 20 die Martii, and a re- ^^- R^ay™- 370. 
covery thereupon, and averred these to be the same nuisance 
and erection: on demurrer the plaintiff had judgment; for 
though he cannot have a new action for the same erection, yet 
he may for continuing the same nuisance. 

(H) Where an Action on the Case will lie for a Con- 
spiracy, and oppressive Proceedings in Prosecutions 
and Suits at Law. 

TT seems agreed, that for a false and malicious prosecution for RolI.Abr. 112. 

any crime (a), whether capital or not, by which the party Several cases 

may be put in peril of his life, suffer in his liberty, reputation, ^^ this pur- 

^ /7\ ^' /u • 4. c -i c pose, (a) How 

or property (6), an action on the case m nature or a writ ot con- \^^ ^^^^ prose- 

spiracy lies ; whether the prosecutor proceeded so far as actually cution must be 
to exhibit an indictment, on which the party was acquitted, or false and raali- 
jjq|.^ cious and with- 

out probable 
cause of suspicion, wrfe Cro.Eliz. 70. 134. Leon. 107. Kelw. 81. Moo. 600. Danv. 212., and 
Salk. 15., where per Holt C. J., that this action is not to be favoured, because it deters men 
from prosecuting ; and, therefore, if the grand jury find the bill, the defendant shall not be 
obliged to shew a probable cause, but it shall lie on the plaintiiF's side to prove an express 
rancour and malice. Qucere, How far the modern practice of granting a copy of the indict- 
ment upon an acquittal, makes it necessary that such copy should be produced, in order to 
prove it a false and malicious prosecution. And t«V/e Carth. 416. Ld. Raym. 374. 12 Mod. 
208.211. 5Mod. 394.405.408. [A copy of the record of the acquittal granted by the court must 
be produced in order to support an action for a malicious prosecution of a felony ; but in the case 
of misdemeanors the practice is different. 1 Black. R. 385.] Hit seems not sufficient to produce 
the original indictment, because it does not prove the caption. 2 Esp. Ca. 57. See 10 Barn. & C. 
70. If the prosecution was before a magistrate the proceedings should be produced ; or if they 
have been lost secondary evidence should be given. 2 Barn. & C. 496.|| {b) It has been holden, 
that for exhibiting an indictment, which only affected a man's property, no action lay if the 
indictment were insufficient, or the bill found ignoramits by the grand jury. Vide Danv. 208, 
209. several cases put jaro. and con. And Salk. 15. in margine., that in an action on the case for 
maliciously procuring //. to be indicted for exercising the trade of a badger without licence, 
'pcr quod he was put to great expense ; in which it was agreed, that the indictment was insuffi- 
cient; it was resolved by Parker C.J. and the whole court, upon great consideration, that 
there was no reason for this diversity between a malicious prosecution upon a good indict- 
ment and upon a bad one; and that this action will lie as well for damages by expense, as by 
scandal or imprisonment, though the indictment be insufficient. Hil. 12 Ann. Jones and Gwin. 
10 Mod, 148. 214. [Gilb. Gas. 185. Stra.691. 977. Ca. temp. Hardw. 54. 4 Term.R. 247. ace.] 
||This was confirmed in Pippet v. Hearn, 5 Barn. & A. 634. The mere return o( ignoramus, where 
the indictment contains no scandal, and where the defendant has suffered no imprisonment, no 
special damage, will not of itself support the action without proof of express malice. Byne v. 
Moore, 5 Taunt. 187. Sed vide 4 I3arn. & C. 25. Nor can malice be inferred so as to sustain 
the action from the mere fact of the plaintiff having been acquitted for want of the prosecutor's 
appearing when called for. Purcell v. M'Namara, 9 East, 561.; and see 14 East, 502. 1 Camp. 
204. If some of the charges in the indictment are maliciously preferred, though others are 
not so, the action lies. Reed v. Taylor, 4 Taunt. 616. And it is no answer that the defendant 
did what he did by the advice of counsel if the opinion was ill-founded, or if the facts were 
improperly stated to counsel. Hewlett v. Crutchley, 5 Taunt. 277.; and see 2Barn. &C. 
695.11 [^'^6 action may be brought by a husband for the expense of defending his wife. 
2 Stra, 977.] 

I 3 [If 



118 ACTIONS ON THE CASE. 

Canh.4i6. C^^ '^® action be brought against several, and one only be found ; 

Bull. Ni. Pri. guilty, it is sufficient; for there is a great difference between the , 
M. But see a action on the case in the nature of conspiracy, and the writ of 
doubt in this conspiracy at common law; for in this case the damage sustained . 
cane by Suund- • ^,' -^ i r^i »• 
en, where the is the ground of the action. , 

declaratioo stated the injury to have been committed per contpb'ationem inter eo» habittttiu-; 
Saund. 230. In actions for prosecutions or oppressive proceedings, it is indispensably neces- 
•ary to make out two grounds: malice and want of probable cause. 4 Burr. 1974. From the 
latter the former may be implied, but not e conveno. ||In general the plaintiff must give some 
evidence of the want of probable cause ; but as this is evidence of a negative, very slight evi- 
dence is sufficient to call on the other party to shew the affirmative. See Cotton v. James, 
1 Barn. & Adolph. I33.|| Where there had been a condemnation of goods by sub-commissioners 
excise for not entering and paying the duties, which was afterwards reversed by the commis- \ 
sioners of appeal, it was adjudged that an action for a malicious prosecution did not lie against - 
the informer, for the judgment of the sub-commissioners shewed that there was a foundation 
for the prosecution. 1 \Vils. 232. 1 Term R. 500. ||See 1 Barn. & Adolph. 133.|| Inactions of 
this kind the plaintiff must allege that the original suit, wherever instituted, is at an end. 
Dougl. 205. ; for otherwise the point would come to be tried too soon and disorderly. Yelv. 
117., it must be legally at an end; and, therefore, in an action against a justice for an illegal 
commitment on a supposed charge of felony, the court held an allegation that the plaintiff 
was discharged from bis in)prisonment, to be insufficient; because there are various ways by 
which a discharge may be had, without putting an end to the suit : it ought to have been shewn 
how dischayged. 2 Term R. 225. Stra.114. Hob. 206. 266. 10 Mod. 245. So, in an action 
for maliciously holding to bail, it must be shewn what is become 'of the original action. 
iSalk. 15. Dj^. 285. If it has been abandoned, it should seem that an action will lie, for 
abandonment is an indication of its being false and hopeless. W. Jones, 93. ^Sed qu. and ; 
vide Sinclair v. Eldred, 4 Taunt. 7.|| So, where the plaintiff suffered himself to be nonsuited. ' 
Bull. Ni. Pri. 13. (4th edit.) But a nolle prosequi by the attorney-general is not such a 
termination of a criminal suit as will authorize an action. 6 Mod. 261. See 10 Mod. 219. 
Gilb. ('as. 185., &c. Nor is a stet processus. Wilkinson v. Howel, 1 Moo. & Malk. 495.|| 
Qu. Whether the defect of stating the original action to be determined, may not be cured by 
a rerdict or plea in bar? Rayra. 418. 2 Keb. 456. 753. 5 Keb. 781. Saund. 229. 

Austin V. II Where there are mutual dealings between two parties, and 

^R'"*'"xr r ^'^"^^ known to be due on each side of the account, if one party 

i39^™and see *^^^^^ ^^^^ °^''^^' ^°^ ^''^ amount of one side of the account, with- 

5 Barn. & A. ^."'^ gi^'^o credit for what is due on the other, the arrest is mali- 
513. ; sed vide cious and without probable cause, and an action may be supported. 

2 Camp. 594. 

Nicholson v. Where A. arrested B. on the 10th December, and was ruled to 

4&Iin''&C ^5^'''^*"^. "" ^I'e 17th., and filed a declaration on the 24-th, and 

2j "• • discontinued the action on payment of costs on the 31st, it was 

«Dow.&R.i2.j ^^^^^f t^at the circumstances were sufficient jprima facie evidence 

and see Went- of malice and want of probable cause. 

worth V. Bulien, 9 Bam. & C. 840. 

Berry v. If the sherifTs officer having a writ against A. send him a 

6 ftJ!r& C ^^'^^'^^ *° ^^ ^ t™^ ^" call and give bail, and A. accordingly 

528. ; and see *"t"^? ^"^^ ^'^^ ^^''' ^^'^ ^^ "° ^^'^'^^^ 5 and an action for a 

2 New R. 211. malicious arrest does not lie, although the party suing out the 
1 Moo. fi writ have no cause of action. 

Malk. 244. ; sed vide sCarr. & P. 605. 

MwkiSo^h A^^ • ^^f defendant can show that in making the arrest, he acted 

3 BwD. & c! ^fJ^f on the opinion of counsel of competent skill and ability, 
693.; and sec "."J' believed that he had a good cause of action against the plain- 
ly*** ^** ^ u ^°^^^ ^ ^°°^ defence to an action for a malicious arrest. 
S02. But where it appeared that the party was influenced by an indi- 
rect 



(H) For Conspiracy, 02)presshe Prosecutions^ ^c. 119 

rect motive in making the arrest, it was held to be well left to the 
jury to say whether he acted bona Jidc on his counsel's opinion, 
and beheved that he had a good cause of action. 

If the plaintiff' in an action for malicious prosecution, prove a £)avis v 
case which in the opinion of the judge shows that there was no Hardy, 
probable cause for the indictment, and the defendant then calls a 6 Bam. & C, 
witness, who proves an additional fact, which in the judge's ^^^' 
opinion shows a probable cause, and there is no contradictory 
testimony, and nothing in the demeanour of the witness to im- 
peach his credit, the judge is not bound to leave the fact to the 
jury, but may act upon it as a fact proved, and nonsuit the 
plaintiff. 

The plaintiff may maintain the action, although he has ob- p, , , 
tained a criminal information. Ij Barlow 

1 Ry. & Moo. 275. 

If a justice of peace malitiose et invide macJiinans J. S. de bonis, Windham v. 
nomine, fama et vita deinrivare, directs his warrant to several con- CI ere, Leon, 
stables to apprehend J. S. alleging, in his said warrant, that J. S. *87. Cro. 
was accused before him for steahng an horse ; whereupon he is ^ wp|?^ * 
arrested, and detained till he enters into bond for his appearance ; of Windham 
whereas he was not accused, nor stole such horse ; an action will v. Clere is not 
lie; for though the justice (a) is excused when upon a false ac- jaw; for the 
cusation he sends out his warrant, yet it is otherwise where he ""i;"ediate act 
makes it out without any accusation at all. (b) ment pro- 

ceeded from the justice ; and therefore the action should have been trespass, and trespass only ; 
but where the act of imprisonment by one person is in consequence of information from ano- 
ther, there an action on the case is the proper remedy, because the injury is sustained in con- 
sequence of tlie wronjjful act of that other person. Morgan v. Hughes, 2 Term R. 231.] ||See 
2 Chitt. 504, 1 Dow. & R. 97.11 (b) If a justice of peace procures some witnesses to appear 
and give evidence upon an indictment, that is but his duty ; and though his name was indorsed 
upon the indictment to give evidence, yet this made him no prosecutor, and so no action lies 
against him for a malicious prosecution. Vent. 47. 2 Keb. 572. 

[An action on the case is the proper remedy against excise Bootv.Cooper 
oflficers who enter a house under a legal warrant to search for ?^"^ another, 
concealed goods, when there are none.] ^' ^ 2 Term 

R. 535. See the case of Bostock v. Saunders and others. 2 Black. R. 912. 3 Wils. 434. 
where the Court of Common Pleas, after hearing two arguments, held, that trespass would lie 
in such a case. 

II So also for maliciously suing out a commission of bankruptcy Cotton v. 
or lunacy. II James, 

I Barn. & Adol. 133. 1 Gow. Ca. 50. 

An action on the case lies against churchwardens, for that they VideRoW. 
falsely and maliciously, to the intent to draw the plaintiff within Abr. 112. and 
the censures of the ecclesiastical court for adultery, presented him ^^ r c^se''^'ill 
there, upon a fame of living in adultery with A. S. not lie for an 

ecclesitistical scandal. Sed qu. If it will not lie for the expense, trouble, and vexation attend- 
ing defence ? 

If yi. was churchwarden of J5. and at the end of the year gave Rayra.4i8. 

up his account to his successor, and vet yl. is falsely and maUci- F, 7?"^^. ^f^', 
1 -^ 1 I i-w . 1 T-. 1 • . i*v-i 1 . b.C adjudged, 

ously cited byZ). into the Ecclesiastical Court to render an account, ^i^^ plaintiff 

and at the request of Z). he is excommunicated for not rendering declaring that 

J 4, lip the defendant 



120 ACTIONS ON THE CASE. 

knowinp the "P ^»s account, an action lies against D. notwithstanding this 
plaintiff had sentence was given by the judge. .„^ ,„s 

before made up his accounts, which were approved by the parish, &c. Vide Hardr. 194, 195. 
S. C and a long argument. 

Ackcrlcy v. [j An action on the case cannot be maintained against the judge 

** "m'Tx « of an ecclesiastical court, for excommunicating the plaintiff for 
3 Maule & b. j|i5oi,eying a citation of the court, if the judge has jurisdiction of 
the subject-matter, and if no malice appears, notwithstanding the 
citation by which the plaintiff was cited be void, and the proceed- 
ings thereon have been set aside on appeal. 
Beaurain v. But if the judge excommunicate a party for disobeying an order 

Sir W. Scott, which the judge has no authority to make, or if the party has not 
3 Camp. 387. ^^^^ previously served with a citation or monition, or had notice 
of the order, the action lies against the judge, though there is no 
pretence of malice. || 
Salk. 14. But it must be observed, that there is a great difference between 

Hob^266° a false and malicious prosecution by way of indictment, and bring- 
3 Leon. 138. »ng a civil action ; for, in the latter, the plaintiff asserts a right, 
Cro. Jac. 432. and shall be amerced pro /also clamore ,- also the defendant is 
entitled to his costs; and therefore, for commencing such an 
action, though without sufficient grounds, no action on the case 
lies. 
Sid. 424. But, if the plaintiff declares, that he being arrested in Middle- 

s Keb. 546. sex at the suit of the defendant, and the defendant, intending to 
Lcy^275 detain him in prison, /also et malitiose dixit to the sheriff of Mid- 

3 Lev. 21 1. dlesex, that the plaintiff owed him 500/. requiring him to take 
S. C. cited. bail accordingly, per quod he was detained in gaol several days ; 
^Hj * *■ ^' ^' ^"^^ action lies, because of the special damage sustained by the 
crewhsTerm P^'^^'^y ^n this false affirmation. 

R, 185. S. P. IJWthout the ingredient oi malice this action cannot be supported: moTtce 
must be averred and proved. Scheibel v. Fairbain, 1 Bos. & Pull. 588. Gibson v. Chater, 
2 Bos. & Pull. 129.- With that ingredient, mixed with falsehood, it will lie for holding to 
bail in an inferior court :is well as in the courts of Westminster Hall, either where the inferior 
conrt has not cognizance of the cause, the defendant knowing that it has not, Goslin v. 
Wiicock, 2 Wils. 302. or, where the sura actuidly due would not authorize an arrest in it. 
Smith V. Cattle, Id. 376.H But it is not enough to declare generally that he brought an action 
uainst him ex malitid et tine causa, per quod he put him to great charge, &c. but he must shew 
tne grievance specially ; jjhe must shew that the original suit is terminated ; judgment of 
non pros in the original action is not of itself proof of malice. Sinclair v. Eldred, 4 Taunt. 7.\\ 
Saund- 228. Vent. 12. 19. 86. Danv. 196. 1 Salk, 15. pi. 6. Ld. Raym. 503. 12 Mod. 273. 
||2 Term R. 232.1| 

R \'i* Ah*'' ^^ ^ Stranger brings an action against A. in the name of J. 5. 

S.V Marih^' ^^'^°"^ the consent of J. 5. an action on the case lies against 
47 8. P. Cro. liim-(«) 

t • ' ^«?* ^°? ^'" *^^'"*^ ^^y ^ remedy upon the 8 Eliz. c. 2. But qiuere where there are several 
plaintiits, and one of them gives his consent. Cro. Eliz. 236. 2 Sid. 162. If upon an issue 
botween A. and B., a stranger that was not returned of the jury, causes himself to be sworn 
m the name of one that was returned of the jury, and a verdict is given for B., A. may have 
»n acuon upon the case against the stranger. March, 81. 

Skelind''* ?^ ^' ^"^^^^ ^ petition to a committee of parliament, ap- 

Kh^. Mod.58. pointed for the examination of public grievances, and therein 
S. C. 2 Kcb. charges 2?. being a doctor of law, and vicar general to the Bishop 
361. 4«2. 466. of L. with several great offences, as extortion, S^c. in his office; 

and 



(I) Where Case lies, though there is another Remedy. 121 

and for the better manifestation of these grievances, causes the g^g gg4 goj, 
said petition to be printed, and to be delivered to several of the 832. S.C.Lev. 
members of the said committee ; yet no action upon the case lies ; 240. S. C. Sid. 
for this printing and delivering of the case as aforesaid, is accord- ^^' . j 
ing to the order and course of proceeding in parliament. Libel znASlan' 

der.\( [Aliter, if it had been dispersed abroad before it had been presented. Hardr. S. C. 
2 Keb. 832. 1 Hawk. P. C. c. 73. $ 8. 12. 15. Case will not lie for words spoken or sworn in a 
legal and judicial way. 2 Burr. SIC] If a man brings a writ of forgery against a peer, &c. and 
the defendant is found not guilty, yet shall he not have scandalum magnatum, and lay the charge 
contained in the writ to be a scandal. Roll. Abr. 34. Moor, 38. Hetl. 55. Hob. 266. No 
action lies against a witness for perjury, in giving his evidence in a cause. Vide Danv. 195. 

In case, the plaintiff declared that the defendant maliciously Carth. 189. 
levied a plaint in London, and prosecuted the plaintiff thereon, lempiev. lui- 
ubi revera the cause of action did arise in D. in Kent, out of the show. 194. 
jurisdiction of the court o^ London; after verdict for the plaintiff, 254. Cases, 
the court inclined that the action would not lie ; for the plaintiff S. R. 4 S. C. 
might have pleaded to the jurisdiction, and if they had refused ?:"' noresolu- 
his plea, he might have applied for a prohibition. said' that it 

was fit to have the opinion of all the judges ; for that such action was never held to lie till 
^or^A's time. Vide \ent. 669. 2 Jones, 214. Hob. 205. Cro. Jac. 667. Sid. 465. Sand. 
221. 4 Co. 14. No action lies for suing an attorney in an inferior court; for who knows 
whether he will insist on his privilege, and if he does, he may plead it. Mod. 209, 210. per 
cur. [It is now settled that an action of the case will lie for maliciously suing a person in an 
inferior court, when that court has no jurisdiction of the cause : and the Court of Common 
Pleas, after due consideration, refused a new trial in such a case, though the declaration did 
not allege, as it ought to have done, that the defendant knew that the inferior court had 
no jurisdiction. 2 Wils. 302.] 

[An action on the case is maintainable for a malicious abuse of Sutherland y. 
delegated authority of the highest nature ; as, where the governor Murray, Sit- 
and vice-admiral of one of his majesty's islands suspended the ,^;^^/er after" 
judge of the vice-admiralty court from the exercise of that office, Easter, 1783. 
maliciously and without any reasonable cause. cor. Eyre B. 

, , , . 1 Terra R.538. 

But this action will not lie for a malicious prosecution before a Johnstone v. 
naval court martial, for an offence cognizable therein (a) : nor Sutton, 
for delaying to bring an officer under arrest to a court-martial, it 1 Term R. 493. 
being a military offence. Nor will it lie (b) against a command- > \ 7 th"' 
ing officer for an improper exercise of his power, Jlagrante hello, defendant has 
and out of the British dominions.] not been tried 

for it by a 
court-martial, (b) Barwis v. Keppel. a Wils. 314. 

11 An action on the case does not lie to recover damages against r>.,„.„„ „ 
11 r. 1 1 • • rt» • • • „ ^ ^ I'urton V. 

the lessor ot the plaintm in a vexatious ejectment. 1) Honnor, 

I Bos. & P. 205. 

(I) Where Case will lie, though the Party injured has 
another Remedy. 

TF one slanders my title, whereby I am wrongfully disturbed Allen, 3. ||5Icrf 

in my possession, though I have remedy against the tres- ^^. V'cars v. 
passer, yet I may have an action against him that caused the g ^^ / ^^^ 
disturbance. 2 Bos. & Pull. 

284. and tit. Slander^ C.|| 
If a man stops a water-course, per quod his neighbour's ground Dyer, 250. in 

is 



l» ACTIONS ON THE CASE. 

margitie. is surrounded, his neighbour may have an assize, or action on 

Leon. 247. the case, at his election. 

verts totum curtum aqiue from my water-course to my mill, though I may have an assize tor 
this, yet 1 may have an action upon the case, at uiy election. Roll. Abr. 104. 

Ley 130 by ^^* copyholder in fee surrenders a messuage to the use of one 
Penlerton for life, the remainder to another in fee, and the defendant (the 
ami Lfvinz husband of the tenant for life) pulls down part of the messuage, 
cord. Wind- ^^^ |jg j„ (.he remainder may have an action on the case against 
haiH and . . 

Charlton. And '^^^' ^ , , 

per Fcmbcrlon and Levinz, where Coke says, that before the statute of Gloucester the lessor 
was without remedy for waste done by his tenant ; that must be intended according to the 
subject matter of which he was speaking, scUicet, that he had no remedy by action of waste : 
and Femberton said, that without doubt at this day the lessor may wave his remedy by action 
of waste, and bring an action on the case.* 

• Where the estate of any one in remainder or reversion is injured by the tenant in pos- 
session or any other person, an aclion on the case, in the nature of an action of waste, may be 
maintained. 

Kinlyside v. [An action on the case in the nature of waste, as well as an 

Thornton and action of covenant, will lie against a tenant for years after the 

2Bi2r.iiii. ^'^P'''^^'®" "^^"^ '^^™-^ 

R 11 Ab 108 ^^ cestui que use at common law had requested his feoffees to 
s Bulst. 336. make a feoffment to J. S. and they had refused, no action on the 
Roll. R. 125. case lay against them, but his remedy was in chancery only. 
Carth. 224. If a parson is guilty of dilaj^idations, and after takes another 

3 Lev. 268. benefice, by whicli his former becomes void, his successor may 

^*^*iio ^^* have an action on the case ajjainst him ; thouf^h it was objected, 
116. See *u ^ I • A •**!,• V 1 * 

2 Term R. '"^^ "'^ proper remedy was in the spiritual court. 

630. Young V. Munby, 4 Maule& S. 183. Browne v. Ramsden, 2 Moo. Gia.]} [This action 
lies for the neglect of repairing a prebendal \\o\ise by a succeeding prebendary against the pre- 
decessor, or his personal representative, as well as in the case of parochial preferments. Rad- 
cliffe V. D'Oyley, 2 Term R. 650. 3 Wooddes. 206. n,] jjln Gibson v. Wells, 1 N. R. 90. it is 
holdea that case will not lie for permissive waste.|| Where an action on the case lay for a 
legacy in CVomu;c/fs time. Raym.25. 2Sid. 21. 85. Keb. 116. jjAn action at law does not 
lie for a pecuniary legacy, Decks v. Strutt, 5 Term R. 690. ; but lies to recover a specific chattel 
bequeathed, after the executor has assented to the bequest. Doe v. Guy, 3 East, 120.1| 

Roll. Abr. no. \{ A. and his predecessors have used time out of mind to find 
wcre'a public ^ chaplain to sing divine service, and to perform the sacraments 
chapel. Roll. ^"^ sacramentals in the chapel of B. within his manor of D. for 
Abr. 1 10. Cro. B. his servants and family, and he does not find a chaplain ac- 
EUz. 664. cording to the custom; B. may have an action on the case against 

bid. 34. An Yiim. ^ ^ 

action on the 

case lies against a parson for refusing to give J. S. the sacrament, because a man is bound to 
receive It upon a penalty. Per Keb. 947. ^\A. oA. dubitatur. Against a bishop for not taking 
caution of a party excommunicated. Raym. 226. 2 Inst. 623. Against an ordinary for 
refusing to grant administration. Carth. 126. [Against an archdeacon for refusing to induct. 
F.N.B. 47H. Fortesc. R.291.] 

SmSr' • ^^^^ ^^^^ ^'^ ^^^ ^^^^^^y ^"^ maliciously suing out a commis- 

2 WUs. 145. ^^°" °^ bankrupt, though the chancellor has power under the 

3 Burr. 1418. statute of 5 Geo. 2. to give 200/. damages.] 
||Sce Cotton v. James, 1 Barn. & Adol. 128.|1 

Themen\n*. ."^' 1'®^ "P°" *^^ ^'^^"^^ of 6 Geo. 1. c. 16. § 1. by the part^ 
grieved to recover damages against the inhabitants of the adjoin- 
ing 



(K) Where Case lies, though Wrong-doer he punishable, 123 

ing township for trees, coppice, and underwood, unlawfully and habiting the 
feloniously burnt by persons unknown; though the clause directs u^Ij ^^e 1 1 
the party grieved to recover his damages in the same manner nEast 349.' 
and form as given by the statute of 13 E. 1. st. 1. c. 46. for 
dikes and hedges overthrown by persons in the night; upon 
which the usual course of proceeding has been by the writ of 
Noctanter. || 

(K) Where Case will lie thoiigh the Wrong-doer be 
punishable criminally. 

TT seems to be the better opinion of the books, that a person g^jjg ^^^^ 

guilty of felony, and pardoned, or burnt in the hand, may Yelv. 89, 90. 
be proceeded against in a civil action at the suit of the party Jones, 147. 
injured ; for when the party is prosecuted, there can be no (a) (}^^' ^'**' 
inconvenience in allowing the action, and the criminal prosecu- ^-q^ ^^^ ^^ '^' 
tion ought to be no bar to it; for why should he not answer in brought whilst 
damages to the party whom he hath injured, as well as be made the party is 
an example of for the sake of the public, whom he hath """ei" indict- 
/v. J J o * ment for the 

offended.'' same crime, 

for if that were allowed, it might hinder all exemplary punishment. Stile, 346. [See 4 Term 
R. 332, 333.] ||After an acquittal of the defendant for a felonious assault on the plaintiff by 
stabbing him, the plaintiff may maintain trespass to recover damages for the civil injury, if he 
be not shewn to have colluded in procuring the acquittal. Crosby v. Leng, 12 East, 409.|| 

In case against husband and wife, the plaintiff declared that Sid. 375. 
the wife malitiose^ 8fc. affirmed herself to be unmarried et strenue ^?f^^ ^ 
requisivii him to marry her; to which affirmation he giving credit, ^^^ ^^J g q 
married her, being then the defendant's wife, by which he was 2Keb.399. 
put to great charge, injured in his reputation, and greatly troubled And note ; 
in his conscience ; and the court held, that the ground of this PfT ^"««'^'^ 
action being the conversation and contract of the wife, could not does^not'lie • 
bind the husband. because the' 

marrying of the second husband is felony. [See St. 1. J. 1. c. 11. That if seven years have 
elapsed without the former husband or wife having been heard of, the guilt of felony is not in- 
curred. However, where a man falsely pretending himself single, only solicits, but does not 
actually contract a second marriage with the plaintiff, and she sustains special damage in con- 
sequence of such deceit, as, by rejecting other offers, there can be little doubt of her right to 
sue this action. 3 Wooddes. 201, 202.] 

But, where the plaintiff declared that she was a virgin of good Skin. 1I9. 
name and fame, and sought to for marriage by J. S., that the 
defendant, pretending himself to be a single person, made love 
to her, and married her; when in truth he was married to another 
woman, ^c. whereby she became of less credit, Sfc the court held 
that the action lay. 



[ 124 ] 



AFFIDAVIT. 



AN affidavit is an oath in writing, signed by the party deposing, 
sworn before, and attested by him who hath authority to 
administer the same. As most motions and orders of court are 
<rrounded on affidavits, it seems impracticable, and indeed un- 
necessary, to instance in what cases they are to be made use of, 
or when they may be said to be defective, short, or evasive ; this 
being a matter of practice, and few things relating thereto being 
thought worth reporting. 

We shall, however, under this head, set down what we find 
relating to 

(A) The taking and filing of Affidavits. 

(B) Where an Affidavit is necessary. 

(C) Where it may be said to be short and defective. 



Style Pract. 
Rt^. 78. 

S9Car.2. C.25. 
Byihei6&i7 
Car. 2. c. 9. the 
chancellor of 
the duchy of 
Jjoncatter may 
empower per- 
sons to take 
afiidavits. [By 
the 4G.3. 
c 21. a similar 
power is giren 
to the chan- 
cellor and jus. 
tices of the 
Court of Pleas 
in the county 
Palatine of 
Jiurham]. 



(A) The taking and filing of Affidavits. 

II (See Tidd's Practice, c. 19. (9th ed.) and Beames's Ord.)|l \ 

A FFIDAVITS were only to be taken by some judge of that 
court in which they were to be made use of. But now, 
" By the 29 Car. 2. c. 5. the chief justice, and other the justices 
" of the Court of King's Bench, or any two of them, whereof ' 
" the chief justice to be one for that court ; the chief justice of 
" the Common Pleas, and the rest of the justices there, or two of 
" them, whereof the chief justice to be one for that court ; and 
" the lord treasurer, chancellor, and barons of the Exchequer, 
" or two of them, whereof the lord treasurer, chancellor, or 
" chief baron to be one for that court, may by commission or 
" commissions under the seal of the said respective courts, from 
" time to time, as need shall require, empower persons in the 
*' several counties to take affidavits concerning any thing de- 
" pending or concerning any proceedings in the said courts, as 
" masters in chancery extraordinary use to do ; and any judge 
" of assize in his circuit may take affidavits concerning any 
" thing depending, 8[c. as aforesaid ; which affidavits shall be 
'* filed in the several offices of the said courts, and be made use 

« of 



(A) The taking andJiUng qf Affidavits* 125 

" of as othei* affidavits taken in the said courts ; and all persons 
" forswearing themselves in such affidavits shall incur the same 
" penalties as if they had been taken in open court ; the persons 
** taking such affidavits shall receive only Is. for so doing, be- 
** sides the king's duty, which duty shall be paid to the proper 
" officers in the said courts, before such affidavit be there filed 
*' or made use of." 

II By rule of H. T. 3 & 4< G. 4'., no commission for taking affi- i Barn. & C. 
davits can be issued to any person practising as a conveyancer, 288. 2 Dow. 
unless such person be an attorney or solicitor. *''^' 

And by rule of E. T. 4 G. 4., attornies and solicitors of the i Barn. & C. 
great session in Wales, and the counties palatine of Chester, ^^ fvo ** 
Lancaster, and Durham are within the above rule.|| 

[By a rule of the Court of King's Bench E. 31 G. 3. it is HSee 8 Price, 
ordered, " That where any affidavit is taken by any commis- ^^^•'' 
*' sioner of that court made by any person, who from his or her 
*' signature appears to be illiterate, the commissioner taking 
*' such affidavit shall certify or state in the jurat, that the affi- 
*' davit was read in his presence to the party making the same, 
" and that such party seemed perfectly to understand the same, 
" and also that the said party wrote his or her signature in the 
*' presence of the commissioners taking the said affidavit." 

Affidavits taken before a person who is solicitor in the cause 3 Atk. 815. 

are not allowed to be read either at law or in equity. 5TermR.405, 

^ •' H9 Price, 88-11 

||Nor can affidavits be received which are sworn before the „ Vaisev 
attorney of the party, or his partner. i W\ce, lie.,' 

Hopkinson v. Buckley, 8 Taunt. 74. ; and see 5 Moo. 325, 
But an affidavit may be taken before the clerk of the attorney 8 Term R. 638. 
in the cause, if the clerk be empowered to take affidavits. 

It may be taken before the party's own attorney, if in the pi 
country, if the agent in town be the attorney on the record. Cooper, 

5 Taunt. 89. ; and see 8 Taunt. 435. 

Affidavits not entitled " in the King's Bench," and sworn be- R- 1; ^^^^> 
fore A. B. a commissioner, Sfc. without stating him to be a com- Ir^^Kennett 
missioner of that court, were not allowed to be read ; but &c, y. Jones,' 
affidavits sworn in court or before a judge of the court, though 7TermR. isy. 
not entitled " in the King's Bench," were read.|| 

If affidavits taken before commissioners in the country, ac- 2 Salk. 46i. 
cording to the above statute, be expressed to be in a cause P ^" 
depending between A. and B. and there be no such cause in 
court, they cannot be read, because the commissioners have no 
authority to take them, and there can be no perjury; otherwise, 
if there be a cause in court, and this concerns some collateral 
matter. 

[If an affidavit in a cause have no title, it cannot be received, 2 Term R. 644. 
though the adverse party is willing to wave the objection.] 

II So if . be not entitled in any court, it cannot be received. Osbom v. 

*^ Tatteson, 1 Bos. &Pull. 271. 

An affidavit to support a rule nisi for staying proceedings on Roberts v. 
a bail-bond, should be entitled in the action against the bail. Giddins, 

But, 



12G AFFIDAVIT. 

1 Bos. & Piill. But, where no action against the bail is commenced, as, if a mo- 
337. tioii be made to cancel the bail-bond, the affidavit must be en- 

titled in the ori<rinal action; for unless it be entitled in some 
action, no perjury can be assigned upon it.|| 
iStra.704. An affidavit upon a motion for a certiorari to remove an 

indictment is properly entitled, " t/ie King v. A. B, (the de- 
fendant.) " 
Bevan v. The affidavits on which to apply for an attachment for dis- 

Bevan.sTerm obeying an award, where the submission is made a rule of court 

R, 601. The under the statute, need not be entitled in any cause ; but those 
same practice • . 

prevails in m answer n.ust. 

affidavits to move for informations. Rex v. Pierson. Andr.SlO. sStra. 1107. S. C. 
Bainbridgev. || But neither need be entitled on a motion to set aside the 
Houlton, award. II 

5 East, 21. " 

Wood V. Affidavits for attachments in civil suits are to be entitled with 

Webb, 3 Term \]^q names of the parties, but as soon as the attachments issue, 
R. 25j. bo, 1 ^j^g j.j jg ^^ ^g named as prosecutor. 

S ranted, o r 

oiigh not issued. 7 Term R. 439. Rex v. Sheriff of Middlesex, 6 Term R. GO. Whitehead 
V. Firth, 12 East, 165. ||Siich title is sufficient without naming the cause, though it is conve< 
nient to do so. 5 Barn. & C. 389.|| ' 

Rex V.Robin- ||An affidavit on a motion for leave to file a criminal inform- 
rT'^^^Coi" ^'^'"" ought not to be entitled; and if it is, it cannot be read. 
6TeriDR.387. ^"^ ^'^^ affidavits produced on shewing cause against the rule 

may or may not be entitled ; all affidavits made after the rule is 

made absolute mu.st be entitled. 
Ex parte In moving for a rule nisi for a certiorari the affidavit must 

6 c'^267^"'^"" "°' ^^ entitled in any cause. 

Kelly V. Wro- Affidavits in support of a rule to set aside proceedings on a 
ther, 2 Chitt. bail-bond may be either entitled in the action on the bond, or in 

109. Sedvide ^j^^ • j^^ 
1 Bmg. 142. o 

7 Moo. 600. 

Gandell v. Where a motion is made in a cause removed to the K. B. by 

Rogier, ^rit of error, the affidavit must be entitled in the cause in error. 

4 Bam. & C. 862. 

Sowerby V. I" entering up judgment on an old warrant of attorney, the 

Woodroffe, affidavit may be properly entitled in a cause. 

1 Barn. & A. 567. r r j 

K^ar" T*^^ Christian names as well as surnames of the parties must 

7 Term k 661. ^ inserted in the title of an affidavit produced to shew cause 
against a rule. 

Steyner v. An affidavit, the tide of which styles the plaintiff « assignee,'* 

Cottrell, without more is bad. 

5 Taunt. 377. 

Doe V. Want, ^"^^ ^° ^^^° ^^^^^ names of all parties are not stated. A. B. 
s Moo. 722. " ^nd others," is insufficient. || 
Bullman v. Callow, l Chitt. 727. 

2 WUs. 571. Where an affidavit has been read and filed, it cannot be taken 

off the file. 

l?TvL'n'of^' Affidavits made for one purpose may occasionallv be used for 
iermK..85. another. Thus an affidavit taken before a judge" at 7iisi prius 

upon 



(B) Where an Affidavit is necessary. 1^7 

upon an information out of the King's Bench, and afterwards 

returned into that court and filed, was admitted as a ground on 

which to grant another information, the court considering the 

authority of the judge at nisi 2^^'ius in that case as an emanation 

of their own. So, affidavits upon wliich a defenilant hath ob- CphmoU* 

tained his discharge in one cause, have afterwards been admitted 4TermR.285. 

for a similar purpose in another cause. 

||The courts of this country will take notice of affidavits sworn 
before foreign judicatures, provided they are properly authenti- 
cated. 

Where the affidavit is taken before one of the judges of the ^ ^"^^^ ou 
superior courts in Ireland, an affidavit that the signature is in his 3ia(.k. 275. 
hand-writing, has been admitted as a sufficient authentication of 
it. But, with resjiect to ordinary magistrates, it is usual to re- 
quire the attestation of a notary public. In a late case («), how- (rt)Dalmer v. 
ever, the Court of King's Bench received an affidavit purporting ^^p"^'*'^' 
to be sworn before the high bailiff and chief magistrate of the 251 . but see 
district of 7Joz^i^/fir5 in ihe Isle of Maji, upon oath made before the Riddle v. Nash, 
court here, that the deponent believed the signature to be of the 8 Moo. 632. 
proper hand-writing of that magistrate. 

Affidavits sworn before a justice of the peace in Scofla?id, are Tumbull v. 
admissible in a cause in the K. B. if the handwriting of the justice Moreton, 
beauthenticated.il 721^ g^^^-^ 

19 Ves. 345. So, also, before a baron of exchequer in Scotland. 1 Jac. & W. 296. 

(B) Where an Affidavit is necessary. 

'T^HE law and practice of the courts require, that on all motions Vide the seve- 

for an information, attachment, complaint against any officer ral heads. [By 

for an offence not committed in the face of the court, for a new ^^fj*'' °^'^^ 

trial, relating to the serving and returning of writs or processes, jj. jg enacted 

4c oath or affidavit be made of what is affirmed, that the judges that the so- 

may be satisfied, as well of the truth thereof, as of the reason- lemn affirm- 

ableness of granting relief when made out. ^f"^" ?"'* ^^' 

° *^ claration ot a 

Quaker shall be accepted in all cases, except in a criminal cause, instead of an oath in the 

usual form. See too 12 G. 2. c. 13. 22 G. 2. c. 46.] 

Also, by acts of parliament, affidavits are made necessary, as 
by 4 Ann. cap. 16. § 11. in the case of dilatory pleas; and by 
the 12 Geo. 2. cap. 29. to hold to special bail. 

II As a general rule the court requires in all petitions under acts 2 Younge & J. 
for local improvements, ^c. for payment of money out of court, ^^^^ 
that the parties applying shall by affidavit shortly verify their title, 
and state that, to their knowledge and belief, no other person has 
any title to, or claims any interest in the estate. || 

If a person exhibits a bill for the discovery of a deed, and prays Q\^Q;{y q^ j i^ 
relief thereupon, he must annex an affidavit to his bill, that he 23i.Vern.i80. 
has not such deed in his possession, or that it is not in his power 247. 3 Chan. 
to come at it; for otherwise he takes away the jurisdiction of the S' **' pP'^''* 
common law courts, without shewing any probable cause why he g q.^ \^^^ 
should sue in equity. 15.' 2 Eq. Ca. 

Abr. 13. 2Freem. 7. 2 P. Wms. Rep. 541. Prec. Ch. 536. sAtk. 17. 132. Con/r. 1 Yern. 
59. evidently a mistake. 

But, 



1«8 AFFIDAVIT. 

V«jrn. 180. But, if he seeks discovery of the deed only, or that it may be 

«<T- produced at a trial at law, he need not annex such affidavit to 

his bill ; for it is not to be presumed that in either of these cases 
he would do so absurd a thing, as exhibit a bill, if he had the 
deed in his possession. 
King V. King, [It is also unnecessary in the case of a bill for discovery of a 
Most'ly, 192. cancelled instrument, and to have another deed executed, for if the 
plaintiff had the cancelled instrument in his hands, he could make 
no use of it at law, and the relief prayed is such as a court of 
equity only can give.] 
Abr.in Eq. 14. Also, if he sets forth the whole circumstances of his case, and 
Prcc. Ch. 536. p^ys general relief, the prayer of relief shall be applied to the 
GUb.^Hist. discovery only. 

Philips V. [If a bill be filed for examining a material witness upon the 

Carew, 1 P. ground that his evidence is likely to be lost by death or departure 
Wms. 117. from the realm, there must be an affidavit annexed to it, of the 
Ferrers % P*^ circumstances from which the danger of such loss is apprehended. 
Wms. 77. So, if a bill be filed for perpetuating the testimony of a witness 
1 Atk. 450. upon the ground of his being the only witness to a particular 
Mitf. Eq. pi. point, and his evidence being of the utmost importance, an affi- 
davit of the witness himself should be annexed, to it. The prin- 
ciple on which it is required in these cases to annex to the bill an 
affidavit of the circumstances which render the examination of 
witnesses proper in a court of equity ; though the matter is capable 
of being made immediately the subject of a suit at law ; seems 
to be the same as that on which the practice of annexing an 
affidavit of the loss or want of an instrument, to a bill seeking 
to obtain in a court of equity the mere legal effect of an instru- 
ment, is founded; namely, that the bill tends to alter the ordi- 
nary course of the administration of justice, which ought not to 
be permitted on the bare allegation of a plaintiff in his bill. 
Taylor v. In order to obtain the leave of the court to bring a bill of re- 

Sharp, 3 P. view, or a supplemental bill in the nature of a bill of review ujpon 
x^]!^f'£^^^'l ^^^ discover!/ of new matter^ thfere must be an affidavit that such 
78. 82. * °^^^ matter could not have been produced or used by the party 

claiming at the time when the decree was made.] 
Bunb. 303. In an interpleading bill, the party who prefers it must 

jSee 3 Ves. & make affidavit that he does not collude with either of the other 
^•'•>°ll parties. 

[(a) He must He who moves for a ne exeat regno against another, must make 
ly ^fthc"'^ affidavit of the loss he is like to sustain by the party's going out 
clcfcndant is °^ ^^^ kingdom, and that thereby the debt may be lost, and that 
indebted to the party is actually going out of the kingdom, (a) 
him in a sum certain: where indeed a bill is for an account only, the plaintiff's swearing that 
he beheves the balance in his favour will be so much, will be sufficient. 3 Atk. 501.] llSee 
5 V». 96. 8 Ves. 52. 7 Ves. 417. 10 Ves. 164. ll Ves. 54. 16 Ves. 470. 18 Ves. 354. 
19 Vet. 342. 6 Madd. 276.; and see tit. Prerogative, Vol. VI.|| 

St^*^ Tp f^ Quaker hath been permitted to put in an answer to a fri- 

Wras! 78i! volous and vexatious bill without either oath or affirmation. 
S P. Wms. Where a party excepts to a fact certified by a master's report, 

.142. note. he must support his exception by an affidavit. 

The 



(C) Where it rruiy he said to he short and defective. 



129 



Jonee, 155. 
Seld. 3 Vol. 
p. 2. 1335. 



The nobility of this kingdom, and lords of the upper house 
of parliament, are of ancient right to answer in all courts, as 
defendants upon protestation of honour only, and not upon 
oath.] 

A peeress by her answer owned that she had several deeds in p^^ q^ 
her power, but did not set them forth ; and on motion she was Duke HamiJ- 
ordered to produce them on oath, but that order was changed, ton and Lady 
and she to produce them on honour only, beinff in supplement Gerrard; but 
to her answer, which was on honour. ^j^^j. ^^^ ^^.^^^ 

that a peer or peeress should produce writings on affidavit, or be examined on oath, as to any 
thing in his answer, is not good. [Lord Harcourt held, that the privilege of a peer to depose 
on his honour only, was confined solely to his answer in Chancery ; that in all other cases he 
must be upon oath ; and therefore the Lord Stourton was put to answer upon his oath to 
interrogatories. Sir Thomas Meers v. Lady Stourl^on, 1 P. Wms. 146.] 



(C) Where it may be said to be short and defective. 

/V N affidavit must set forth the matter positively, and all ma- 
terial circumstances attending it, that the court may judge 
whether the deponent's conclusions be just or not. 

And therefore, on motion to put off a trial for want of a ma- 
terial witness, it must appear that sufficient endeavours were 
made use of to have him at the time appointed, and that he can- 
not possibly be present, though he may on further time given. 

II In an affidavit in a cause the plaintiff need not state his resi- 
dence. || 



Faresl. 
Comb. 



121. 

422. 



Crockets v. 

Bishton, 

2 Madd. 446. 

2 Salk. 461. 



Rex V.Wilson, 
4TermR.487. 



Upon a rule to shew cause, the plaintiff offered several new 
affidavits, and this diversity was taken, viz. where they contain pi. i. 
new matter, and where they tend only to confirm what was al- 
leged and sworn when the rule was made ; in the latter case they 
may be read, not in the former. 

[When a defendant who has suffered judgment by default in a 
criminal prosecution, is brought up for judgment, each party 
should come prepared with affidavits disclosing his case (if he 
mean to produce any) ; but if in the course of the enquiry the 
court wish to have any point further explained, they will give the 
defendant an opportunity of answering it on a future day. 

When a defendant who has been convicted on an indictment Rex v. Sharp, 
comes up for judgment, the prosecutor may read affidavits in »ess, i Term 
aggravation, though made by witnesses who were examined at the ^* ^^®' 
trial, which affidavits the defendant is at liberty to answer.] 

If there be affidavit against affidavit, the proper method is to „ . 
have it tried by an issue at law. ifseTBearnVs 

Ord. 34.|| But this is matter discretionary in the court. See 3 Mod. 108. where an action 
'on the case was brought for scandalous matter inserted in an affidavit ; that the party is to 
put nothing in the a^f/ayjMnit what is material to the point, and therefore not to set forth 
the merits of his cause on motion. Stile Prac. Reg. 79. where the affidavit of one who stood 
in the pillory was read. 2 Salk. 461. But for this vide tit. Evidence. ||As to affidavits in 
support of injunctions, see tit. Injunction.^ 

li An affidavit made in support of a state of facts may be re- In re Burton, 
ferred for scandal, but not for impertinence, by a party who has ^ Russell, 580. 
Vol. I. K filed, 



I3i) AGREEMENTS. 

See 7 Price, filed, in support of a counter state of facts, an affidavit which ap- 
***• |)ears to be an answer to the former. II 



A 







AGREEMENTS. 



/! 



(a) An agree- A N agreement [a) is the consent of two or more persons, the 
mentis defined xX ^^^^ ^^ p^j.^^ with, and the other to receive, some property, 

*^^t^ ■ • riffht, or benefit. The notion of contracting or entering into 
wtennum tn re o ' „,. ^ '^ ,,° 

atiqua facta vel agreements arose trom the mcrease or commerce, and the neces- 
facicnda. sity men were under of bartering their superfluities for things of 

Plowd. 17. a. j.gjj| ygg^ which lay out of the way of their acquiring. That men 
uluiiumin should execute their agreements and perform their promises, 
idem placitum though made without writing or consideration), is enjoined by the 
consensus. law of nature ; but in civil societies, and in ours in particular, 
P^' T"',' "ij circumstances are required which protect the weak, and those 
Though aeon- ^ho are under the power of others ; and provision is made against 
tract executed fraud and circumvention, 
with all the 

solemnity required by law, may properly be called an agreement, yet in the more common 
acceptation of the word articles, viinutes, and escrow, &c. containing something preparatory 
to a more solemn and formal execution, are called agreements. 

Under this head we will consider, 

(A) Who are capable of contracting and binding them- 

selves or others by their Agreements. 

(B) Of Agreements which are good in Law, and will 

be decreed in Specie in Equity : and herein, 

U Of unreasonable Agreements, and such as may he said to 
be obtained by Fraud or Circumvention. 

2. Of voluntary Agreements, 

3. Of the Manner in which they are to be performed, 

(C) Of Parol Agreements, or such as may be said to 

be within the Statute of Frauds and Perjuries : 
and herein. 

Hi. Of Agreements mentioned in the First, Second and Third 
Sections of the Statute. 

2. Of Agreements mentioned in the Fourth Section : and 
herein, 

1. Of 



(A) Who are capable of making Agreements, 131 

1. Of Promises by Executors, Administrators, &c. 

2. Of Promises to answer for the Debt, Default, or 

Miscarriage of another. 

3. Of Agreements in consideration of Marriage. 

4. Of Contracts for Sale of Lands, Tenements, and 

Hereditaments. 

5. Of Agreements not to be performed within One Year 

from the making of them. 

3. Of Agreements mentioned in the Seventeenth Section : and 
herein, 

1. What Agreements are within the Section. 

2. Of Acceptance of Goodsj and part Payment within 

the meaning of the Section. 

3. Of the Memorandum in Writing, and the signing by 

the Party to be charged, or by an Agent, jj 

(D) Of Cases where Equity decrees specific Perform- 
ance of Agreements on the Ground of their 
being in part performed. 



(A) Who are capable of contracting and binding them- 
selves or others by their Agreements. 

A PERSON non compos is not capable of entering into any But for this 
agreement, for an agreement is an act of the understanding vide head of 
which such persons are incapable of, and therefore are to be ^^^^^'^ ^^'^ 
under the care of their curators or guardians, by a commission 
from the public. 

An infant for the same reason is incapable of contracting. pj^^ ^^jg^ ^^^^ 

of Infancy and Age, ||and Void and Voidable.^ [If an infant. Bays Ld. Mansfield^ does a rifrht 
act which he ought to do, or which he was compellable to do, it shall bind him. 3 Burr. 1801. 
And if an infant enter into a contract with the advice and concurrence of his friends, and such 
contract appear to be beneficial to the interests, of the infant, equity will support and give 
it efifect. 1 Eq. Cas. Abr. 287. 

A wife during the intermarriage is [a) incapable of entering Vide tit. Baron 

into any agreement in pais, being under the power of her f"f^^'.^'. 
It 1 ffl) But it IS 

husband. iaid.thatif 

a feme covert, by agreement made with her husband, is to surrender a copyhold or levy a fine, 
though the husband die before it be done, equity will compel her to perform the agreement. 
2 Vern. 61. pi. 52. Eq. Ca. Abr. 25. pi. 6. Upon looking into the Registrar's book, it ap- 

E eared that the court made no decree in it, but it was by consent referred to Mr. Serjeant 
lawlinson for his arbitration. Equ. Ca. Abr. 62. pi. 2, per curiam. 

The ancestor seised in fee may by his agreement bind his heir; Baden v. 
therefore if A. agrees to sell lands, and receives part of the pur- p°"u^^ °^ 
chase money, but dies before a conveyance is executed, and a bill 2 Vern. 215. 
is brought against the heir, he will be decreed to convey (6), [(A) So in the 
and the money shall go to the executor, especially if there are caseofacus- 

K 2 more 



ia« AGREEMENTS. 

tomory heir, more debts due than the testator's personal estate is sufficient to 

tV«.640.] 

But if a man ' •' 

for 100/, assumes to make a lease for twenty-one years, and dies, his heir is not compellable in 
a court of equity to make the lease, for this is against tlie common law. Qiuere. Eq. Cas. 
Abr. 265. pi. 4. iJRoll. Abr. 377. pi. 18.|| 

VuU in/n) of So if a father conveys to a younger son by a defective convey- 
voluntary ^^^^^ ^^^^ jj^^^ ^1^^ |^gjj. ^j. ^^^ jj^ ^^^ ^^^^^ shall be compelled 

(fl!T?9.*^uTOn 'o make it good. 1. Where there is a covenant {a) for further 
a marriage assurance, binding the heir, because the heir is bound by the 
treaty was to covenant. 2. Where there is a provision made by the father in 

settle 500/. ;«rr j,jg iife_time for the heir, or he hath such provision by descent 
annum asa^,^,,,. ' ' •' 

jointure, in from the father. (6) 

consideration of a marriage portion ; J. S. was intrusted with the drawing of the settlement, 
which was never read by the wife; the jointure settled was but 400l. per annwrn, of which the 
husband took notice, and talked of making it up so much, but dying before it was done, his 
heir was decreed to make it up, although there was no covenant by which he bound his 
heir to make it up so much. Vern. 16. [{b) See the case of Chetwynd v. Fleetwood, 4 Br. 
P. C. 435. where a specific performance of an agreement made by the ancestor, only tenant for 
life, was decreed against the heir, the agreement being clearly for his benefit.] jjSee Brummell 
V. Clavering, 3 Swans*. 690.|| v 

Hob. 203. I^ tt:.ant in tail agrees to convey, or bargains and sells the 

Chan. Ca. 171. lauus for valuable consideration, without fine or recovery, and 
10 Mod. 469. dies before the fine or recovery be levied or suffered, the issue 
(d) So^th^o^u' h ^^ "°' (^^ bound either in law or equity, for equity cannot set 
there be a de- aside the statute de doniSf which says, voluntas donatoris obser- 
cree against vetur ; nor can the court set up a new manner of conveyancing, 
the tenant in and supersede fines and recoveries ; for thereby the king would 
filieand^ suffer ^^^^ ^^® perquisites by fines, on the writs of entry and fines for 
a recovery, alienation. 

and he dies in contempt and in prison for not executing it, yet the issue shall not be bound- 
Vide Eq. Abr. 25. pi. 4. 265. pi. 2. 2 Vern. 506. [2 Ves. 634. But see Hill v. Cari;^ 1 Ch. 
Ca. 294. The issue not bound by a covenant for further assurance. 1 Lev. 237. nor by 
articles to convey for payment of debts. 2 Eq. Ca. Abr. 28. p. 34. By analogy to the cases 
of tenants in tail who claim paramount to the contracting party, it hath been holden, that the 
widow of a copyholder for life, who had agreed for the sale of his estate, but died before the 
conveyance was executed, was not debarred by this agreement of her free bench; for that her 
claim was not under the husband, but from the custom of the manor. Musgrave v. Dashwood, 
2 Vern. 45, 63. But Ld. Hardwicke thought that the widow's estate was a branch of, and 
arose from that of the husband, and that the custom merely directed its derivation ; and there- 
aIL^a^^^ the agreement was for a valuable consideration, paid, as to the greatest part, he 
. ^^^ c. -_r ... ... ... __ ,^^^ Arabl. 277. 

same principle, 

o , — without doing so, 

eouity would not enforce the agreement against the survivor. But this, it seems, must be 
taken with this limitation, where the articles are not such as amount to a severance of the 

"•^l ^' I • ^^ ^^ ^'^» ^^^^^y '''^^ ^^"^^ against the survivor. Per Ld. Hardwicke, 2 Ves. 
634. Co. Lltt. 59, b.] 

Sir*a^d' ^^^' , ^* *^i^®^ °^ ^^"^* ^" ^^^' agrees with B. that he and his heirs 
fUm, (d)So if snail enjoy the entailed lands, if A. and his heirs may enjoy his 
the issue in fee-simple lands ; this agreement is executed accordingly, and B. 
tail had rcco. had a decree against A. to levy a fine and settle it, pursuant to 
the pufcha^. ^^"^ agreement; but A, died without doing it: though it was de- 
money in his creed that A. himself was bound by this agreement to convey, yet 
father's life- since he died before he executed the fine, his issue was not bound 
time, or after by the agreement : but if the issue in tail liad approved of his 

ancestor's 




(A) Who are capable (^making Agreements, 133 

ancestor's agreement, as he did in this case, by entering on the his deatli.or if 
land of B. then it becomes his own agreement, and consequently ^^ had joined 
in equity he shall be obliged to perform it. {d) with tie father, 

or covenanted for further assurance, &c. Chan. Ca. 171. Lev. 238. [Any agreement with an 
equivalent will bind the issue, as a partition, though but by parol, or an excharge of lands. 
2 Vern. 202. Co. Litt. 174. a. 384. a.] 

If there be tenant in tail in equity as of a trust, or under an chan. Ca. 234. 
equitable agreement, and he for valuable consideration bargain 2 Chan. Ca. 64. 
and sell the land without fine or recovery, this shall bind his 2 Vent. sso. 
issue, because the statute de donis doth not extend to it, being Jvern %?^* 
an entail in equity and a creature of the court, {a) 583_ 702. 

[(a) It seems that upon the same principle the heir in tail of a copyhold, whose ancestor had 
entered into an agreement to sell, but had died before surrender, would be decreed to convey 
to the purchaser ; for the entail of a copyhold is not within the statute de donis. Powell 
on Contr, 126.] 

As tenant in tail is restrained from alienating the estate with- Bro. Contract. 

out fine or recovery, so he is from charging it, or disposing of the p^* } ^ r?' ^°" 

lasting improvements after his death ; therefore if tenant in tail (Jj^Qh. Whe- 

sells the trees growing on the inheritance, the vendee must sever ther he may 

them during the life of the tenant in tail, for if he dies before "ot have relief 

they are cut down, his issue shall have them as part of the inherit- J."jher"^^ "t*^ 

ance, and the vendee, though {b) obliged to pay the whole sum ^^ action for 

contracted for, yet shall not be allowed to cut down one tree after money had 

the death of tenant in tail ; for as the tenant in tail has power over and received 

the inheritance but during his own life, so he cannot delegate would not lie 
. I . ^ 11^1 . 1 ° 1 against the re- 

tnat power to another but tor the same time ; and consequently, presentative ? 

whatever remains part of the inheritance at the death of tenant in [If tenant in 

tail, at which time his power over it ceases, must necessarily go tail covenant 

to the heir, to whom the inheritance belongs. f° make a 

D lease, which he 

has power to make, and die before execution, equity, it seems, will carry it into execution 

against his heir. 10 Mod. 469. If tenant for life, with power to make leases for twenty-one 

years, grant one for twenty-six years, such lease shall bind the remainder-man for .twenty-one 

years, for under the power of leasing there is a referable privity given. Campbell v. Leach, 

Anibl. 740.] \\Vide Shannon v. Bradstreet, 1 Scho. & Lef. 52. Ellard v. Lora LlandafF, 1 Ball. 

& B. 241., and 1 Chan. Ca. 25. 3 Chan. R. 1 l.jl 

CA mother, acting as administratrix, may bind her children. Highter v. 

Sturman, 1 Vern. 210. 

Churchwardens are in that character competent to enter into Dr. Martin v. 
any agreement which may be beneficial to the parish, and thereby w^^^^^ofi^s^' 
to bind the parishioners and their successors, as also succeeding nggg jjj.^ 

churchwardens. Church- 

wardens.^ 

If a party undertaking for and on the behalf of another have Johnson v. 
no authority from his principal, there it is a fraud, and the un- Ogilby, 3 P. 
dertaker ought himself to be liable. But where a due authority Wms. 279. 

Martini" xr 

is given to treat, there the performance of the contract shall be ^^^jg g Vem 
enforced against the principal. 127. Duchess ' 

of Marlborough v. Strong, 5 Yin. Abr. 533. p. 38. 2 Bro. P. C. 500. S. C. If an attorney 
should bid more for an estate sold under a decree of the Court of Chancery, than he waa 
empowered to bid, and declare his principal, Sir Thomas Sewell, Master of the Rolls, thought 
that the attorney himself would be liable, but doubted whether the principal would. Ambl. 
498. But where many are concerned in interest, and the credit is evidently given to the 
person, and not to any fund, the immediate contractors are liable. Thus where a man con- 

K 3 tractei 



134 AGREEMENTS. 

tracted to pore the streets of a town by a written instrunaent executed between hira and two 
of the parishioners, the Court of Excheauer decreed him relief against the undertakers, and 
left them to their remedy over afjainst the rest of the parish ; more especially as the written 
contract, which was the plaintiff"'s evitience, was in the hands of one of the defendants. Me- 
rick V. Wymondfold, Hardr. 205. So it was holden, that a bill might be supported against the 
committee of a club for an agreement entered into by them on account of the club, without 
making the rest of the subscribers parties. Cullen v. Duke of Queensberry, 1 Bro. Ch. R. 101. 
affirmed in Dom. Proc. March 27. 1787. So, where the commissioners of a navigation act 
entered into an agreement with an engineer, they were holden to he personally liable. Horsley 
T. Bell, Ambl. 770. S. C. in 1 Bro. Chan. R. 101. in note. I|Eaton v. Bell, 5 Barn. & Aid. 34. 
In these cases the contracting parties, though agents, are held liable on the ground of the 
absence of any re»ponsiblc principal ; but there is an exception to this rule in the case of 
government agents and public officers : e.g. the governor of a settlement, a commissary 
general, the commander of a ship of war, who, in general, are not personally responsible on 
the contracts made in their public capacity, although there be no principal against whom a 
remedy can be had. Macbcath v. Haldimand, ||l Term R. 172. ; and see Myrtle v. Beaver 

1 East, 135. Bowen r. Morris, 2 Taunt. 374. If, indeed, the agent bind himself by a formal 
engagement, as if a factor enter into a charter party in his own name, or if an agent purchasing 
bills for his principal indorse them himself, or if an agent covenant for himself and his heirs for 
the act of his principal, then, whether a public officer or not, he is personally liable. 1 Term 
R. 181. 2 Moll. 331. 2Atk. 623. 2 Vern. 280. Goupy T. Harden, 7 Taunt. 1 59. Appleton 
T. Binks, 5 East, 148. Burrell v. Jones, 5 Barn. & A. 47. Paley on Princ and Agent, ch. 6. 
(2d edit.jil / 

Daniel v. Where an agent employed by husband and wife to sell the 

Adams, Ambl. wife's estate by public auction sold it by private contract, at a 
*•*• higher price than they had required, the court refused to compel 

them to execute the contract, the agent not having acted pur- 
suant to the authority given him. 
Ambl. 498. But if a factor sell goods at less price than he is commissioned, 

otherwbe' i'n '^^ ^^^^ ^^^^ ^^"^ '^^ principal for the convenience of trade, 
case of a broker, i Esp. Ca. lil.H 

Cox V Peele ^^^ agreements of the solicitors in a cause, relative to orders 

2 Bro. Ch. R*. of court, are binding on their clients.] 
334. ||A» to admissions by attorneys of facts, vide tit. Evidence.^ 

(B) Of Agreements which are good in Law, and will 
be decreed in Specie in Equity : and herein, 

1. Of unreasonable Agreements^ and stick as may be said to be 
obtained by Fraud or Circumvention. 

(a) Vide t\t. JN many cases the party injured by breach of an agreement 
#am^/, and , ™^^ ^^^^ * remedy either by action at common law (a), ojr 
Covenant. ^V recourse to a court of equity ; but here a general rule must 

Vide Abr. Eq. be observed, that wherever the matter of the bill is merely in 
the rallof" *^^"^«ges, there the remedy is at law, because the damages can- 
courts o( 1?°^ ^^ ascertained by the conscience of the chancellor, and there- 
equity not to 'ore must be settled by a jury, (b) 

entertdn the suit unless the plaintiff" wants the thing in specie, and cannot have it any other 
way. fcmngton v. Aynesley, 2 Bro. Ch. R. 343. Therefore, in general, they will not allow a 
S i K » '^uf" performance of contracts of stock, corn, hops, or other articles of merchan- 
due, but w^l leave the plamtifi^to his remedy at law. l P. Wms. 570. 5 Vin. Abr. 538. S. C. 
XS^n o'o Tf' K • r' u °°"'°" ^- Westbrook, 2 Eq. Ca. Abr. 161. p. 8. 5 Vin. Abr. 
««,;h'^;, rk '^''^^^^ /f the common covenant to repair demised premises, is considered as 
•«rin J in rh M^ L°h ?"'* P^PI'T-**"'^ *° b^ redressed by action at law. Whistler v. Main- 
E^^ I ^» ov ^' ^' u '±" ' Wooddes. 464. n. 2.] HMosely v. Virgin, 3 Ves. 1 85. 
R*ynar V. Stone ,3Lden. 128.|| [But on a covenant to rebuild, as it was holden by Lord 

Hardunckc, 



(B) TFhaf good in Law, and speci/icall^ enfoj^ced in Equitif. 135 

Hardwicke, the landlord or lessor may come into Chancery for a specific performance, if he is 
in due time, and no constructive acquiescence can be imputed to him. City of London v. 
Nash, i Ves. 12. and 5 Atk. 512. S. C. This doctrine, however, has been lately controverted, 
and perhaps entirely over-ruled. Lucas v. Comerford, 3 Bro. Ch. R. 166.] [jSee Mosely v. 
Virgin, 3 Ves. 185. Flint v. Brandon, 8 Ves. 164. Hill v. Barclay, 16 Ves. 402.1| [In the cases 
of Gardener v. Pullen, 2 Vern. 594. Thomson v. Harcourt, 2 Bro. P. C. 41 5. a performance of 
an agreement for stock was decreed. But it should be observed, that in those cases the party 
who had undertaken to transfer the stock was j)laintifF, seeking relief against a penalty, in 
which he had bound himself for performance of the contract, and that the performance of it 
was the only ground on which equity could relieve him. Fonbl. Notes on Eq. Tr. p. 120. 
But on a bill filed against the party who had undertaken to transfer the stock, Lord King did 
not think the rule so invariably settled, as to allow a demurrer to the bill for want of equity. 
Colt V. Nettervill, 2 P. Wms. 304.] ||See Mason v. Armitage, 15 Ves. 37. Nutbrown v. 
Thornton, 10 Ves. 161. And a bill will lie for performance of an agreement to purchase stock 
where it prays a delivery of certificates which give a legal title to stock. Doloret v. Rothschild, 
1 Sim. & Stu. 590.|| [And contracts respecting mere personal chattels will be enforced in 
equity where the damages recoverable at law would not be an adequate compensation for the 
non-performance. Buxton v. Lister, 3 Atk. 383., and Taylor v. Neville, and Duke of Buck- 
ingham V. Ward, there cited; and Lord Ranelaugh v. Hays, irifra.} |lAs in the case of the 
stock on a farm seized by the landlord during the tenancy. Nutbrown v. Thornton, 10 Ves. 
159.; family pictures and furniture. Lady Arundell v. Phipps, Ibid. 139.; and see Withy v. 
Cottle, 1 Sim. & Stu. 174. 1 Turner & R. 78. The court will enforce a specific performance 
of a contract to purchase a debt. Wright v. Bell, 5 Price R. 325. Dan. 95. ; and see Withy 
V.Cottle, suprh. Adderley v. Dixon, 1 Sim. &Stu.607.1| 

But if there be matter of fraud mixed with the damages, as if Chan. R. 158. 
A, sues B. on a covenant at law for damages, and B. files a bill ^^''•Eq. 17. 
for an injunction upon this equitable suggestion, that the cove- 
nant was obtained by fraud, if y^. files his cross-bill for relief upon 
that covenant, the court will retain it, because the validity of 
the covenant is disputed in that court, and on a head properly 
cognizable there ; and therefore, if the validity of the deed be 
established, the court will direct an issue for the quantum of the 
damages. 

So where the agreement is to do something in specie, as to See Chan. Cd. 
convey lands, execute a deed, 8fc. there it will be proper to apply 42. where an 
to a court of equity for a specific execution, to which the party agreement m 
is entitled, if the agreement be good and sufficiently proved, ^^ger was 
when otlierwise he could only recover damages at law. decreed in 

specie. 

Ij A specific performance will not be decreed of an agreement street v. 
to submit to arbitration. Rigby, cVes. 

818. Agar V. Macklew,2 Sim. & Stu. 418. Gourlay v. Somerset, 19 Ves. 431. 

Nor of an agreement to purchase an attorney's business, since Bozon v. 
supposing such agreement not illegal, the court has no means of Farlow, 
carrying it into execution. * Meriv. 459. 

Nor of an agreement for partnership, as it may be dissolved „ 
immediately afterwards. 1| Birch 9 Ves, 

357. ; ted vide 3 Atk. 385. Madd. Treatise on Chan. 411. note (x). 

The plaintiff assigned some shares of the excise to the defend- Vern. i89. 
ant, who thereupon covenanted to save him harmless, and to R'- ^^^' ^"'"'^ 
stand in his place touching all payments to the king ; the plain- j|' ^ 2 Chan', 
tiff being sued by the king, brought his bill to have the agree- Ca. 146. S. Cr 
ment performed in specie; and although it was insisted that the 
plaintiff might recover damages at law, and that this was not a 
covenant for any thing certain ; and by this means a Master in 

K 4 Chancery 



136 AGREEMENTS. 

C'hancery was to tax damages instead of a jury; yet it was de- 
creed, that the defendant should perform his covenants ; and it 
was directed to a Master, that, as often as any breach should 
happen, he should report it specially ; that the court, if occasion 
should be, might direct a trial in a quantum damnijkat. 
Abr. Eq. 18. So if a jointress brings her bill to have an account of the real 

^7. [(a) In j^„j personal estate of her late husband, and to have satisfaction 
Stcwart,*4th thereout for a defect of value of her jointure lands, which he had 
/m/j 1786. covenanted to be and to continue of such value ; and the defend- 
er L.Kcnyon ant insists, that this is a covenant which founds only in damages, 
Master of the ^^^ properly determinable at law; though it be admitted that a 
Rolls, directed f r -. .. i i i ► • *u- 

the Master to court of equity cannot regularly assess damages ; yet in this case, 

enquire what a Master in Chancery (a) may properly enquire into the value and 
damage the defect of the lands, and report it to the court, who may decree 
plaintiff had g^^jj defect to be made good, or send it to be tried at law, upon 
sustained by . i -^ . ° » r 

the defendant's « quantum dammficat. 

not having performed his agreement, of which a specific performance was prayed by the bill, 
but which could not be decreed, the defendant having, by sale of the estate, put it out of his 
power to perform his agreement with the plaintiff. Fonbl. Notes on Eq. Tr.389.] jjThis 
decision was followed by the Master of the Rolls in Greenaway v. Adams, 12 Ves. 595. ; but 
the nrinciple was doubted in that case, and also in Gwillim v. Stone, 14 Ves. 128., and 
Todd v. Gee, 17 Ves. 273.; and see a foil note of Denton v. Stewart, 17 Ves. 276., and 1 Cox 
R. 258.0 

Abr. Eq. 18. The condition of a bond was to settle certain lands in such a 

P'-^' K*)^* manor, by such a day; and the obligor died before the day, so 
holden that to ^^' ^^ bond was saved at law ; yet the court decreed a specific 
found a de- execution, {h) 

cree for a specific performance, the contract must be good at law ; and therefore it is stated 
by Sir Thomas Clarke^ Master of the Rolls, in Ambl. 406. that it was the practice before Lord 
Somers* time with respect to agreements, to send the party to law ; and if he recovered any 
thing hy way of damages then to entertain the suit. But equity will often enforce a perform- 
ance of agreements, though no action will lie at law upon them, as in the case in the text, and 
in Cannel v. Buckle, 2 P. Wms.243. Acton v. Pierce, 2 Vern. 480. Scott v. Wray, 1 Chan. 
R. 45. Edwin v. East India Company, 2 Vern. 210.] ||Chandos v. Brownlow, 2 Ridg. P. Ca. 
416.; but see 2 Freeni. 216., and see 1 Anst. 45. 3 Swanst. 41 7.1| 

Abr. Eq. 17. ^"' .^^^^ it must be observed, that agreements, out of which 

3Atk.386. an equity can be raised for a decree in specie, ought to be ob- 
TS)*234'Pr ^'"*:^ ^^^^ ^^^ imaginable fairness, and without any mixture 
Ch.538. iBro. ^^"^'"g to surprise or circumvention; and that they be not un- 
Ch. R. 440. reasonable in themselves, (c) 

((e) Vaughan v. Thomas, l Bro. Ch. R. SSG, ace. Stanhope v. Toppe, 2 Bro. P. C. 1 83. 2 Ed. 
Ca.Abr.55. note to Ca.1.1 iJCostigan v. Hastier, 2 Scho. & Lef. 166. Howel v. George, 
1 Madd. K. 1 1. note. Revell v. Hussey, 2 Ball & B. 287.|| [But inadequacy of price, simply 
and of Itself, independently on any other circumstances, is not a ground with the court to 
annul an agreement, though executory. Keen v. Stukeley, Gilb. R. 155., and 2 Bro. P. C, 396. 

-n"*"!?^'!; ''P^'"L.-.S''°-^^-'^'^^^- ^^""y^^ v- Sherrard, Ambl. 18. Jackson v. Lever, 
5 wro. I h. K. 605. ^^tIll less is it a ground to rescind one already executed. Nicols v. Gould, 
S \ C8. 422. Henley v. Acton, 2 Bro. Ch. R. 1 7. Spratley v. Griffith, 2 Bro. Ch. R. 1 79. Willis 
V. Temegan, 2 Atk. 25 1. ; but see Heme v. Meeres, l Vern. 465. In the case of Heathcote v. 
Mugnon, 2 liro. Ch. K. 167. Lord Thurlow admitted, that mere inadequacy of price was 
•cwcely sufficient; but said, that « there was a difference between that and evidence arising 
frominatlequacy.Ifthere IS such inadequacy as to shew that the person did not undert 
stand the bargain he made, or was so oppressed that he was glad to make it, knowing its 

Vnlln!'^"n W k « VT"^«"^ ""l^' '"•" ^hich may amount to fraud." And see ace. 
Young V. Clerk, Pr. Ch 538.] HLovc v Borchard, 8 Ves. 1 33. Westburn v. Russell, 3 Ves. & 
B.187. Matthew, v. Peern, 1 Cox's R 278. Copi, v. Middleton, 2 Madd. 430. Coles v. 

Trecothick, 



(B) What good in Law, and specifically enforced in Equity, 137 

Trecothick, 9 Ves. 246. Underbill v. Harwood, loVes. 219. Burrows v. Lock, loVes.474. 
Murray V. Palmer, 2 Scho. & Lef. 488. Peacock v. Evans, 16 Ves. 517. Lukey v. O'Donnel, 

2 Scho. & Lef. 471. Pickett V. Logan, 14 Ves. 240. Inadequacy of price coupled with dis- 
tress of the vendors, and want of advice, is a ground for invalidating a sale. Wood v. Abrey, 

3 Madd. 417. ; and see Kemyes v. Hansard, Coop. C. 125. Martin v. Mitchell, 2 Jac. & W. 13.|1 
[And where agreements are endeavoured to be set aside, for supposed weakness of understand- 
ing in one of the contracting parties, for breach of confidence, or other substantive reason, the 
inequality of the terms may be a material ingredient in the case, as evidence of imposition. 

5 VVooddes. 455., and Griffin v. De Veulle, and others, reported in the Appendix. It is to be 
further observed, that where an agreement appears very unequal, the courts will lay hold of 
very slight circumstances to avoid enforcing the execution of it ; as where the plaintiff had 
not made out his title by the time stipulated. Kenn v. Stukely, 2 Bro. P. C. 396, ; a circum- 
stance which, in general, has not any weight with them. Gibson v. Patterson, 1 Atk. 12. If 
the contract be fair in its creation, it shall not be aifected by a subsequent event, which has 
thrown the advantage greatly, or wholly on one side. See the case of Cass v. Rudele, 2 Vern. 
280. more correctly stated in 1 Bro. Ch. R. 157. City of London v. Richmond, 2 Vern. 423. 
Carter v. Carter, Ca. temp. Talb. 271. Mortimer v. Capper, 1 Bro. Ch. R. 156. and the case 
there referred to by Lord 77/Mr/ot/;. Adams v. Weare, 1 Bro. Ch. R.567. Jackson v. Lever, 
3 Bro. Ch. R. 605. where contracts, under such circumstances, have been specifically decreed. 
And see the case of Nicols v. Gould, 2 Ves. 422. Henley v. Acton, 2 Bro. Ch.R. 17. Baldwin 
V. Boulter, cited in 1 Bro. Ch. 11.156. where the courts have refused to set them aside.] 
iJRamsbottom v. Parker, 6 Madd. 5.1J [To this current of authorities must be opposed the 
dictum of the Master of the Rolls, in Stent v. Bailis, 2P. V/ms. 220. and the case of Pope v. 
Roots, 7 Bro. P. C. 184., in which case an estate was sold for an annuity, but the vendor dying 
before any payment was made ; and after the day on which the first payment was to have 
been made, the contract was rescinded, though not impeached in any other respect. James v. 
Owen, E. T. 1733, cited in Fonbl. Notes on Tr. Eq. c. 2, § 11., appears to have proceeded on 
a different ground : the plaintiff had agreed to present the defendant to the Court of Alder- 
men, and to resign the place of printer to the city of London in his favour, to which place 
certain fees and profits were then annexed, but which the Court of Aldermen intimated their 
intention to reduce ; and for that reason the defendant refused to perform his agreement. The 
court thought, that the object of the agreement being the then profits, which were not purely 
contingent, and the plaintiff not having actually surrendered, the performance of the agree- 
ment ought not to be decreed.] jjSee Paine v. Mellor, 6 Ves. 349. Revell v. Hussey, 2 Ball 

6 B. 287.|| [A party who demands a specific execution of an agreement, must shew that he 
has performed all that was to be done on his part, or that he is ready to do so ; " for if he 
" either will not, or through his own negligence cannot perform the whole on his side, he has 
" no title in equity to the performance of the other party, since such performance could not 
" be mutual." Tr. of Eq. c. 6. ^ 2. But it must be observed, that though a plaintiff has not 
performed what was required on his part within the time stipulated, he is yet in general entitled 
to a specific execution, especially if the non-performance has not arisen by his default. Penn 
V. Lord Baltimore, 1 Ves. 450. If in the sale of an estate, it be stipulated that the price shall 
be paid, or the title be completed by a certain day, which elapses without either being done, 
still the contract shall be enforced ; for the general rule is, not to consider the time as of the 
essence of agreements. Gibson v. Paterson, 1 Atk, 12.] |lBut this doctrine is much questioned, 
and see on the subject Pincke v, Curtis, 4 Bro. Ch. R. 329. Lloyd v. CoUett, 4 Bro. Ch. R. 
469. Ormerod v. Hardman, 5 Ves. 736. Seton v. Slade, 7 Ves. 265. Hall v. Smith, 14 Ves. 
426. Wynn v. Morgan, 7 Ves. 202. Alley v. Deschamps, 13 Ves. 228. Radcliffe v. Warring- 
ton, 12 Ves. 326. 1 Ball & B. 68. Morgan v. Shaw, 2 Meriv. 140. Levy v. Lindo, 3 Meriv. 
84.; and what is said in Hudson v. Bertram, 3 Madd. R. 447. Boehm v. Wood, 1 Jac. & W. 
419. Morse V. Merest, 6 Madd. 26. Doloret v. Rothschild, 1 Sim. & Stu. 590. Coslake v. Till, 
1 Russell, 376. Newman v. Rogers, 4 Bro. Ch. R. 391. Lewis v. Lechmere, 10 Mod. 503. ||[In 
the case of non-completion of the title by the day appointed, if the vendee, immediately upon 
the vendor's failure in that respect, demand a return of the deposit, and distinctly refuse to go 
on with the purchase, the court will not compel him ; but if he acquiesce in the delay, know- 
ing the state of it, or do not sufficiently declare his determination not to proceed in the pur- 
chase, he will not be allowed to resist the performance afterwards upon that ground. Pincke, 
V. Curtels, 4 Bro. Ch. R. 329., and the case of Ambrose v. Hodgson therein cited. Vernon v. 
Stephens, 2 P. Wms. 66. However, in either case, if any injury would accrue to the other 
party from the failure, or if the circumstances which occasioned it ate likely to create any 
embarrassment, or to protract the final completion of the agreement for any unreasonable 
time, the court will set it entirely aside. In the case of Mackreth v. Marlar, at the Rolls, 
Juli/ 10. 1786, Sir L. Kent/on decreed a contract for the purchase of an estate to be delivered 

up. 



K' 



138 AGREEMENTS. 

up, the purchaser having died shortly after the contract, and a suit having been instituted for 
ail account of assets, which was then dependinff. The purchaser had agreed to complete his 
purcha-sc on or before the 50th of November ; he died on the 12th of January following, and 
the vendor filed this bill in the beginning of the year 1785. This decree was, that the de- 
fendants, the executors of tlie purchaser, should deliver up the contract to the plaintiff the 
vendor, and that the plaintiff should retain his costs out of the deposit. 2 P. Wnis. 67. note 1. 
Eijuity, too, distin;,'uiihes between those cases, where the one party having performed part of 
the a"reenient, is rendered unable to perform the whole by some subsequent accident ; and yet, 
notwithstanding the part performance, is in statu quo, and those where after such part per- 
formance he is not in statu quo, and in the latter holds him entitled to a performance from the 
other party, though it refuses it in the former. To this distinction must be referred the dif- 
ference of decision in the cases of Earl of Feversham v. Watson, Rep. temp. Finch. 445. 
a Frecm. 35. S. C. Meredith v. Wynn, Pr. Ch. 312. Gilb. Ch. 242. S. C. 1 Eq. Ca. Abr. 70. 
1. J 5. S. C. Gilb. Eq. II. 170. S. C. If the plaintiff has taken all necessary steps to perform 
lis part of the agreement, but has been prevented by the defendant, his endeavours will be 
considered as equivalent to perfomiance Blackwell v. Nash, 1 Stra. 535. Hotham v. East 
India Company, 1 Term R. 658. Though it be generally said that contracts are entire, and 
shall be perfonned in toto, or not at all, yet there are cases in which the courts will decree a 
performance, notwithstanding a partial failure, as in the case of marriage agreements, in favour 
of a wife or children, where there has been a failure by the father's or mother's relations in 
the part they had engaged to perform. Earl of Feversham v. Watson, suprk. Perkins v. 
Lady Thornton, cited in Pyke v. Pyke, 1 Ves. 376.; or of part becoming illegal by a subse- 
quent statute. Dr. Bettcsworth v. Dean and Chapter of St. Paul's, Sel. Ca. Ch. G6. ; or of 
E art exceeding the power of the contracting party. Pawsey v. Bowen, 1 Ch. Ca. 2J. Carap- 
ell V. Leach, Ambl. 740. So in the case of a sale of an estate by lots, though the vendor can- 
not make a good title to all the lots, yet the court will oblige the purchaser to take those to 
which a good title can be made, if they can be separated from the others without being 
lessened in value. Poole v. Shergold, 2 Bro. Ch. R. 118.] 

2 Ch. Ca. 17. As where by a marriage agreement the son's intended wife was 

to have more than would have been left for the father (though 

indebted), his wife and two daughters unpreferred, the Court 

would not decree it ; principally, by reason of the extremity of 

it, but left the party to his remedy at law. 

Vera. 227. So where A. articled for the purchase of B.^s estate, pretending 

V ^'^b^k''" ^^ bought it for one whom B. was willing to oblige, and thereby 

of Bucks" ^ S^^ ^' somewhat cheaper, when in truth he bought it for an- 

[(a) In the Other (a), equity would not decree an execution of this agreement. 

«T °K^T'' Irnham v. Child, 1 Bro. Ch. R. 95., Lord Thurlow is reported to have said, that 

^ he should be very sorry to lay it down, that a man treating with a third person in trust for 

^ a second, whom he had refused to deal with, could therefore set the contract aside ; that 

no case had gone so far; that Phillips v. Duke of Bucks was upon a difference of price." 

But in the case of Eyre v. Popham, M. 14G.3., Lord Bathurst held, that an acreement 

entered mto under the circumstances stated by Lord Thurlow, was not that fair acreement 

which ought to be decreed in specie by a court of equity.] iJSee Davis v. Symonds,^ 1 Cox's 

Fellowes v. ||But \i A. in contracting with B. falsely represent himself as 

1 Sim 63 '*^'^' *^^ '^^^"^ °^ P' ^"^ thereby obtains better terms, the court will 

notwithstanding enforce the contract, unless A. knew that such 

would be the effect of the misrepresentation. 
Scott V. Han- Where a piece of land imperfectly watered was described in 
tee Wetu™v"' ^^^ Particular as uncommonly rich water meadow, it was held 
Stubbs,' ' ^* ^^^^ ^^'^ ^'^^ "°t such a misrepresentation as would avoid the 
iMsdd.so. sale. 
Cadman v. Homer, is Ves. lo. 

L^t'cr"'^' . ^^^^^ on the face of an agreement a specific sura was to 

3Att,*385. , ^'^'^" ^°^ timber; but it was shown by parol testimony that 

the dcfeudants were iiiducetl to give that sum by a representation 

that 



(B) What good in Law, and specifically enforced in Equity, 1S9 

that it had been valued by two timber merchants, the agreement 
was not enforced. 

So, where an agi'eement was to pay so much rent, but it ap- Woollam r 
peared in evidence that the defendant agreed to the rent on the Hearne, 
plaintiff's false representation that it was the rent he paid, a spe- 
cific performance was refused. 

So, where the defendant had executed the agreement on the Clark v. 
faith of a parol agreement by the plaintiff which was unper- Grrant, i4Ves. 
p J • i^ n n 1 *iy. J and see 

lormed, a speciiic pertormance was retused. Beaumont v. 

Dukes, 1 Jac. 422, 

And a party obtaining an agreement by a partial misrepresent- S^^'^J'^""^ ^* 
ation is not entitled to a specific performance on waving the part j j^^ "&^w 
affected by the misrepresentation. 112. 

Where the particulars of sale state it to be without reserve. Meadows v. 
and puffers are employed by the vendor, a specific performance ^"J"^*^' „ 
will not be decreed. 1| ^ "^ • 

So, where A. on the marriage of his daughter to B. covenanted Bromley and 
that B. should have his lands at his death cheaper than any Jefferies, 
other person, and he lived twenty years after, and devised to B. n^^^ Emerv t 
1000/. and to his daughter, ^.'s wife, 500/. and he devised the Wase, sVes. ' 
lands to his grandson ; the court refused to decree an execution 846. Brodie v. 
of the agreement, because of the uncertainty of it, and it not ^tv^'"^?^'^ 
being mutual ; B. not being bound to take it at any price. ^^^ Lyndsay v. 

Lynch, 2 Scho. & Lef. 7.|i 

An agreement for a purchase being obtained by an attorney 2 Vern. 652. 
from an old woman of ninety, and several suspicious circum- ^^^ j ^^^ 
stances appearing, the court would neither decree it to be car- temp. Talb. 
ried into execution against the heir at law, nor to be delivered 2.56. Savage v. 
upon a cross bill exhibited for that purpose ; but left the parties Taylor, S. P. 
to their remedies at law. 

But as these cases, and all others on this head, depend so much [The Court 
upon circumstances, and are to stand or fall according to the de- will not com- 
grees of fraud or circumvention attending them, and proved in Pf ^ P"*"" , 
the cause, or by what appears unreasonable on the face of them ; ^ title which 
I shall only observe, that a court of equity will much more easily is at all doubt- 
be prevailed on to dismiss a bill which prays a specific execution ful ; Shapiand 
of an unreasonable agreement (a), than set aside an agreement, nu r^^c' 
though not strictly fair (b), on a bill for that purpose ; for this Cooper v. 
deprives the party of what he had a right to by law ; and Denne, 4 Br. 
that where such agreements are set aside, it must be on refund- Ch. R. so. nor 
ing what was bona fide paid, making allowances for improve- posg^vv^here a^' 
ments, Src. (c) party has for- 

borne to insist upon an agreement for several years; Scolefield t. Whitehead, 2 Vern. 127. 
Wingfield v. Wheley, 5 Vin. Abr. 534. pi. 58. Powell v. Hankey, 2 P. Wms. Orby v. Trigg, 
9 Mod. 2. IJMoore v. Blake, 1 Ball. & B. 62.|| unless the delay can be accounted for by special 
circumstances; Eq. Tr. c.4. § 27. nor in case of a written agreement, afterwards discharged 
by parol ; Goman v. Salisbury, 1 Vern. 240. Ld. Milton v. Edgeworth, 6 Br. P. C. 580. 
Legal V. Miller, 2 Ves. 299. nor in the case of a sale by auction, where an accident has hap- 
pened to cast a damp upon the sale, though without blame imputable to any one ; as where 
the vendor's agent, known to be such to the company pi-escnt, bid for the purchaser ; Twining 
V. Morrice, 2 Br. Ch. R. 326. IJSmith v. Clarke, 12 Ves. 483. Sed vide Meadows v. Tanner, 
5 Madd. 34. II nor if the agreement be to do a thuig which would tend to extortion, or pro- 
mote 



140 AGREEMENTS. 

mote inebriery ; Mythwold v. VValbank, 2 Ves. 238. ||See Stone v. Liddcsdale, 2 Anstr. 533.\\ 
nor if damages be stipulated ; Woodward v. Gyles, S Vern. 119. But a penalty in general will 
not Ite allowc<l to release parties from their agreements ; it being usually designed merely as a 
medium for securing the performance of the contract. Parks v. Wilson, 10 Mod. 517. Chil- 
liner v. Chilliner, 2 Ves. 528. Sloman v. Walter, 1 Bro. Ch. R. 418. Howard v. Hopkyiis, 
8 Atk. 371. nor will they interpose, if the agreement be founded on an illegal consideration, 
a< that of stifling a prosecution for felony, or for fraud, 3 P. Wms. 279. Keen v. Stukely, 
Ciib. Eq. R. 153. Hanger v. Eyles, 2 fiq. Ca. Abr. 20. p. 16. Hickes v. Phillips, Pr. Ch. 
575. (a) See ace. Savage v. Taylor, Ca. temp. Talb. 236. Young v. Clark, Pr. Ch. 538. 
Vaughaa v. Thoinas, 1 Bro. Ch. R. 556. Davis v. Symonds, Scac. 1787. (6) Solemn con- 
Tcyaiices, releases, and agreements by parties, are not slightly to be blown off and set aside, 
per Ld. MaccUxJUU, Cann v. Cann, 1 P. Wms. 227. ||See Stockley v. Stockley, 1 Ves. & B. 
31. II Equity therefore will not avoid a reatonable andjfair agreement^ though founded on mis- 
take, i-rank v. Frank, 1 Ch. Ca. 84. Stapleton v. Stapleton, 1 Atk. 10. or though the party 
were intoxicated, jjsce Cragg v. Holm, 18, Ves. 14.|| or in prison, at the time he entered into 
it, or some paternal authority were exerted, and some benefit accrue to the father under it. 
Cory V. Cory, 1 Ves. 19. Hinton t. Hinton, 1 Ves. 632. Kincliant v. Kinchant, 1 Bro. Ch. 
R. SCO. ||See Poth. torn. 1.17. Brown v Carter, 5 Ves. 576. Hawes v. Wyatt, 2 Cox, 263- 
3 Bro. C. C. 156. Wycherley v. Wycherley, 2 Eden, 180.|| It will not decree a forfeiture 
after an agreement, in which, if there were a mistake, it was the mistake of all the parties to 
iu PuUen v. Ready, 2 Atk. 592, Maiden v. Merril, 2 Atk. 8. (c) Savage v. Taylor, Ca. 
temp. Talb. 236. For cases of Fraud, vide infra, tit. Fraud (B).] JlAnd see Bowes v. Heaps, 
3 Ves. & B. 117. Dalbiac v. Dalbiac, 16 Ves. U6.|j 

2. Of voluntary Agreements. 

3 Co. 81. b. As men have a right to their acquisitions, so may they dispose 

*.- i^^ ,,"2' of them at their pleasure, and without valuable consideration: 

443. Uy. 33b. , .„ * ' , , . 1.1 

b. 2 Bulstr. but 11 a man promises to convey lands, or to give goods, without 
225. valuable consideration, or without delivering possession of them, 

t(a) Though this alters no property, nor has the party any remedy in law or 
^wedThis ^' ^^"^ty> ^^ being nudum pactum unde non oritur actio, (a) 
maxim from the civil law, yet we do not agree with the civilians in their definition of what 
constitutes a nudum pactum, the want of consideration not being regarded by them. In their 
law, " Nuda convenlio est, qucB in nudis placiti et conventionis finibus stat, nee certuvi novien 
" habetu, nee uUam obligaTuJi causam prceter eonventionevu" D. 1. 7. § 1. 2. and 4. de Pact. 1. 27. 
Vinnius, in his Commentary on the Institutes, p. 578. explains some of the terms of this 
definition. ** Dtto tunt conventionum genera ; unum eorum, ques spedale nomen habent, ex quo 
" genere sunt cmplio-venditio, locatio-conductio, societas, mandatum, depositum, commodatum, 
•» pignut, et similet contractus, qui, quod certum novien habent, dicuntur contractus nominati, et 
" oUigniionem actionemque producunt, non utique propter nomen, quod extriiisecum quid est atq: 
** accidcns ; sed propter utUitatem commercii, cujus indicium est, quod certo ac proprio nomine 
** appellantur; vel potius quia hee conventiones ob frequentiorem mum talem accepere vim ac 
" naiuram, qiuB etiamsi nihil specialiter dictum sit, ex ipso nomine satis intelligatur. Grot. L. 2. 
* de Jure Bell, et Pac. 12. n. 3. Alterum genus est earum conventionum, qua: nomine quidem pro- 
*♦ prio carent, sed quibus prceter consensum subest causa, ut hoc exprimit jurisconsidtus. D. 1. 7. 
** § 2. Et hcB quoque cimventioncs ob/igationem et actionem pariunt. Causam definio dationem 
«• vel factum certd lege, puta, si quid ttbi dedi aut feci eu lege, ut vicissim niihi aliquid dares aid 
*' facercs." See further Fonbi. Notes on Eq. Tr, p. 326. A mere agreement by a creditor to 
take a less sum than that which is owing to him, is nudum pactum. Heathcote v. Crookshanks, 
a Term R. 24.; ||see tit. Accord and Satisfaction.^^ As to the nudum pactum, see Elsee v. 
Gatward, 5 Term R. 143. A consideration executed will not support a subsequent promise, 
unless the act were done at the request of the party promising. Dy. 272. Lampleigh v. 
Braithwaite, Hob. 105. Hayes v. Warren, 2 Barnard. 141 . Robertson v, St. John, 2 Bro. Ch. 
R. 140. or unless the party promising were under a moral obligation to do the act himself, 
or to procure it to be done. Church v. Church, cited in Hunt v. Wotton, Sir T. Raym. 259. 
Turner v. Watson, Bull. Nisi Prius, 147. (4th edit.) Trueman v. Fenton, Cowp. 544. An 
agreement to settle boundanes, though nothing valuable is given, implies sufficient consider- 
auon extending to both parties, who have an interest in shunning contention. Penn v. Lord 
Baltimore, 1 Ves. 444.] 

But 



(B) What good in Law, aiid specifically enforced in Equity. 141 

But if it be done by deed duly executed, under seal, this is pi, 308 309. 
good in law, though there be no consideration, or no delivery Yelv. 196. 
of possession ; because a man is estopped to deny his own deed, Cro. Jac. 270. 
or affirm any thing contrary to the manifest solemnity of con- li'J^^^" A,V* 
trading, {a) 2 Black. Com. 

446. [A consideration is by our law necessary, though the agreement be evidenced by writings 
unless the writing, as in the text, from its being of the highest solemnity, import a consider- 
ation, or 'inless it be negotiable at law, and the interests of third persons be involved in its 
efficacy ; for in this latter case as between the original parties, the want of consideration may 
be averred, and will bar the plaintiff from recovering. Pearson v. Garnett, 4 Mod. 242. 
JefFeries v. Austin, 1 Stra. 674. Gilb. Lex Praetoria, 388, 289. Fonbl. Notes on Eq. Tr. 535. 
j|And so also between third parties, if it appear that the holder gave no consideration for the 
instrument. Rees v. Headfort, 2 Camp. 574. Reynolds v. Chettle, ibid. 596. Patterson 
V. Hardacre, 4 Taunt. 1 14. Delauney v. Mitchell, 1 Stark. 439.|| (a) Though the agreement 
bfijin der s eal, yet if there be no considqratJPOj. .equity will not agree specifically ; for as in 
suchcase*TR5minal damages only^ould be recovered at law, equity, which follows the law, 
will not give more' suT)stantial relief. iVes. 450. 1 Atk. 10. Fursaker v. Robinson, 1 Eq. Ca. 
Abr. 123. Pr. Ch. 475. 8, C. Gilb. Eq. Rep. 479. S. C Tudor v. Anson, 2 Ves. 582.] 

II Notwithstanding the case oi Fur saJcer \. Robinson, suprh, Randall v. 
and the dictum of Lord Northington in Wycherly v. Wycherly, Randall, Prec. 
2 Eden, 177, that he did not recollect a precedent of specific per- in Ch. 464. 
formance of a voluntary agreement, tliere are precedents both ^^^'v y . "^' 
ways. 427, Husband 

V. Pollard, 2 P. Will. 467. Wiseman v. Roper, 1 Ch. Ca. 84. Frank v. Frank, Ibid. Pea- 
cock v. Monk. 1 Ves. 135. Underwood v. Hitchcox, 1 Ves. 280. Griffin v. Hanson, 4 Ves. 
344. 

In some cases the court has held that it has a discretionary Prec.Chan.7S. 
authority. 

It seems to be now settled that the court will not interfere Morrice v. 
against volunteers, unless in case of fraud ; noYfoi' them, by en- f Y|^"f qi' 
forcing the specific performance of a mere voluntary agreement. Stapeiton v. 
Stapelton, 1 Atk. 10.; and see 3 Atk. 399. 18 Ves. 149. Matthews v. Lee, 1 Madd. R. 565. 
Crosbie v. M'Doual, 15 Ves, 148. 

Unless, indeed, in those cases where a specific performance of Goring v. 
marriage articles has been decreed in favour of collaterals, as wfo q „ ' j 
being within the consideration of marriage. & Strode ° 

3 P. Wms. 245. Edwards v. Warwick, Ibid. 175. 

And this cannot be done against a purchaser subsequent to Sutton v. 
the articles or setdement. Pa^ ^-^"1*. 

5 Meriv. 249. 

And a voluntary covenant in a marriage settlement in favour Johnson v. 
of a stranger, clearly cannot be enforced at law or in equity. I:'^]?.^'^''' 

If, however, a voluntary deed is sufficient to pass the subject Colman v. 

out of the conveyor, it will be specifically enforced in equity as p p ' ^ ^""^ 

a trust executed, and not resting in contract, as where stock is j *yg^ ■' '^^ 

actually transferred, or lands conveyed to a trustee, the court Ellison v. El- * 

will execute the agreement as against the trustee and author of lison, 6 Ves. 

the trust.l| Ir, f,f.v /' > 6 i, /< hi ■ - ■ /» / i. ^r > ,. Jf^' Griffin v. 
II ar(^ r.^-'^r /j'l /f V Id:!'- .' < I Cjk.U' XYisfan8on,4Ves. 

356. Pulvertoft V. Pulvertoft, 1 ^ V es. 99. Lechmere v. Carlisle, 3 P. Will. 222. Smith v. 

French, 2 Atk. 24.5. Antrobus v. Smith, 12 Ves. 46.; and see Willan v. Willan, 16 Ves. 82, 

Bayley v. Tyrrell, 2 Ball & B. 363. 

So in equity, voluntary conveyances are good against the par- Vem. loo. 
ties, and cannot be revoked; nor will the court interpose in 1^2. 42'a456. 

behalf 



1V2 agreemp:nts. 

464. 1 Ch- R. behalf of one volunteer against another ; but if they affect cre- 
173. sCh. R. jitoj-s purchasers, or younger children, the court will set them 
•132. NV ornill • i *^ » ^ o 

v.Jac"b, «Slile. ,„ ., 

.•5 Meriv. 271.11 For cases where voluntary deeds and settlements are held void as against cre- 
ditors, &c. see tit. Fraud. 
2 Vent. 365. If there be a defective conveyance, without an equitable con- 

1 Vern.37. sideration, a court of equity will not oblige the party to make 
1 0^11.^147. ^t good, though there be a covenant for further assurances ; as 

2 Krcem. 65. if a man makes a feoffment to a stranger, without livery, the 
[(a) Equity will feoffor, or his heir, shall not be obliged to make good that feoff- 

not supply the ^lent, but it shall be construed in equity to be an estate at will, 
want Ota sur- -^ • i / \ 

render of a as it IS at law. (a) 

cojjyhold in favour of a bastard daughter against the heir of her father, though the father had 
covenanted to convey it, and make further assurances ; for the daughter is, in consideration of 
law, a mere stranger, nuUiusJilia, and the conveyance is merely voluntary. Fursaker v. Robin- 
son, lEq. Ca.Abr. 123.] 

Abr. Eq. 24.5. If an annuity is granted by one to his housekeeper, with a 
pi. 7. 93. p. bond for payment of it, and the bond is lost, equity will decree 
11 nf"r^ payment of the annuity ; for service is a consideration, and no 
the payment turpis contractJis shall be presumed, unless proved, {b) 
of a bond given to an innocent woman whom the obligor hath seduced, for it is pnBmium pu- 
doris. Marchioness of Annandale v. Harris, 2 P. Wms. 432. Eq. Cas. Abr. 87. p. 6. S, C. 

3 Bro. P. C. 445. S. C. Cray v. Rooke, Ca. temp. Talb. 153. S. P. And a bond of this kind 
hath been holden good at law. Turner v. Vaughan. 2 Wils. 339. So where a provision has 
been made for her by an ineffectual conveyance, it will interpose in her behalf both against the 
grantor himself and his repreientative. Ord v. Blackett, cited in 2 P. Wms. 435., and Carew 
y. Stafford, Ibid. See the last case in Ambl. 520. by the name of Gary v. Stafford. Nor will 
it relieve against a bond given even to a common prostitute, if there be no fraud in the case, 
though the application be made by the representative of the obligor. Hill v. Spencer, Ambl. 
641, ; a circumstance which hath been formerly thought to strengthen the ground for relief. 
Matthew v. Hanbury, 2 Vern. 187. Alitor where there is fraud, as where the plaintiff claims it 
as prcEmium pudicilia, and she is found to have been a prostitute prior to the time of her 
having been connected with the party giving it. Clark v. Periam, 2 Atk. 333. But bonds of 
this kind entered into ex turpi causa are void ; as where a woman, knowing a man to be mar- 
ried, submits to his temptation. Priest v. Parrot, 2Ves. 160.; or where a woman having 
ignorantly married a man who had another wife alive, upon coming afterwards to the know- 
ledge of his situation, continues to live with him. Lady Cox's case, 3 P. Wms. 339. So 
where the condition of the bond was that the parties should live together in a state of forni- 
cation. Walker V.Perkins, Administrator, 3 Burr. 1568. 1 Black. R. 517. S.C] put not- 
withstanding the case of Priest v. Parrot, it is decided that a bond given by a married man to 
_a woman who had cohabited with him knowing him to be married, on the cessation of 
intercourse may be enforced at law. Nye v. Moseley, 6 Barn. & Cres. 133., and see S. C. mm. 
Knye v. Moor, 2 Sim. & Stu. 260.|1 

2Ven7'6?r^' ^^^^"^'^y ^i^^ "ot carry a merely voluntary covenant beyond the 

letter of it. 
[(c) This rule In decreeing the execution of agreements, it regards the. intent 
inlhvour of^ ^^ the parties, and does not confine itself to the strictly legal 
issue male by operation of the words. Where, therefore, marriage articles, 
many cases ; literally taken, would give the husband or wife an estate tail, it 
first, where decrees a strict settlement ; for otherwise the provisions for the 
cle7t^!^in '^^"^ (^)' ^^^ ^'^j^^^ ^f ^^^ settlement, might be defeated, (rf)] 
Jones V. Laughton, 1 Eq. Ca. Abr. 392. pi. 2. Nandick v. Wilkes, 1 Eq. Ca. Abr. 393. pi. 5. 
Cusack v. Cusack, 1 Bro. P. C. 470. Trevor v. Trevor, l P. Wms. 622. Dodd v. Dodd, Ambl. 
274. Robmson v. Hardcastle, sTerm R.252. So where there are articles before marriage, 
and a settlement IS made after marriage in the words of the articles, as in Streatfield v. Streat- 
field, Ca. temp. Talb. 176. ; or where there are both articles and settlement before marriage, 

and 



I 

i 



* 



(B) What good in Law, and specifically enforced i?i Equity. 143 

and the settlement is made in pursuance of the articles, as in Honor v. Honor, 1 P. Wms. 125. 
Roberts v.Kingsley. 1 Vcs. 258. But otherwise, where the settlement made before marriage is 
not in pursuance of the articles; for then the parties will be presumed to have come to a new 
agreement. Legg v. Goldwire, cited in Ca. temp.Talb. 20. Partyn v. Roberts, Ambl.515. 
And the same equity arises to the issue female. Barton v. Hastings, Gilb. Eq. R. 113. West 
V. Erissey, 2 P. Wms. 349., and Hart v. Middlehurst, 5 Atk. 371. But this must be under- 
stood where the articles make no other provision for them. Powell v. Price, 2 P. Wms. 535. 
{d) But where this mischief does not occur, or where the intention of the parties to create an 
estate of inheritance is not sufficiently explicit, it seems the rule is not applicable. Chambers 
v. Chambers, Mos. 333. Green v. Eakins, 2 Atk. 476, Partyn v. Roberts, Ambl. 315. Cordwell 
V. Mackrill, Ambl. 515. Highway v. Banner, 1 Bro. Ch. R. 584. 

In contracts proper for a specific performance, equity considers Money cove- 
them often as actually performed {a) from the time they are entered nanted to be 
into. Money covenanted to be laid out in land, it considers as '^id out in 
land; and land articled to be sold, it treats as money; and in- ^^"'j' "'''Is^ 
vests each with the qualities of the other. a,,,! pot the 

executor. Chaplin v. Homer, 1 P. Wms. 483. Scudamore v. Scudamore, Pr. Ch. 540. Ed- 
wards V. Lady Warwick, 2 P. Wms. 171. Lechmere v. Earl of Carlisle, 3 P. Wms. 221.] [jSee 
Thornton v. Hawley, 10 Ves. 219.|1 [Settled on the wife of a freeman of London in heu of 
dower, will not bar her of her customary part. Babington v. Greenwood, 1 P. Wms. 530. It 
will not be personal assets. Earl of Pembroke v. Bowden, 3 Ch. R. 115. 2 Vern. 52. S.C. 
Lawrence v. Beverley, 2 Keb. 84 ) . cited also in 1 Vern. 47 1 . It shall be subject to the curtesy 
of the husband. Sweetapple v, Bindon, 2 Vern. 536. Otway v. Hudson, 2 Vern. 583. Cun- 
ningham V. Moody, 1 Ves. 176.; but not to the dower of the wife, because she is not dowable 
of an equitable estate. It shall pass as land by a will, under sweeping words, if at the time of 
making the will the testator has an equitable estate therein. Davie v.Beardsham, 1 Ch.Ca. 39. 
Prideaux v. Gibben, 2 Ch. Ca. 144. Milner v. Mills, Mos. 123. AUeyn v. Alleyn, Mos. 262. 
Greenhill v. Greenhill, 2 Vern. 679. Pr. Ch. 320. S. C. Shorer v. Shorer, 10 Mod. 39. Lingen 
V. Sowray, 1 P. Wms. 172. Pr. Ch. 400. S. C. Langford v. Pitt, 2 P. VVms. 629. Guidot v. 
Guidot, 3 Atk. 254. Potter v. Potter, 1 Ves. 437. Gibson v. Lord Montfort, 1 Ves. 494, 
And it will not pass as money under a general bequest to a legatee, unless described as so much 
money agreed to be laid out in land. Cross v. Addenbroke, and Fulham v. Jones, cited in a 
note 5 P. Wms. 221.] [[See Biddulph v. Biddulph, 12 Ves. 16I.H [Where a recovery would be 
necessary to give a person the absolute interest in it, if land, a fine will not be sufficient. 
Colwell v. Shadwell, cited in 1 P. Wms. 471. 485. Edwards v. Countess of Warwick, 2 P. 
Wms. 171. Collet V. Collet, 5 Atk. 11, TrafFord v. Boehm, 3 Atk.447. Carter v. Carter, 
Ca. temp. Talb. 272.] USee 7 G. 4. c. 45. § 1, 2. empowering a court of equity, where money 
is directed to be invested in land, to be settled in such manner that the first tenant in tail 
might bar the estates tail and remainders, to order the money to be paid to the tenant in tail; 
and 6 Ves. 116. 156. 8 Ves. 609. 9 Ves. 462. 1 Jac. 234.1| [But equity will not consider 
money as land, unless the covenant or direction to lay it out in land be express. Symons v. 
Rutter, 2 Vern. 227. Curling v. May, cited in 3 Atk. 255.] iJSee Pearson v. Lane, 17 Ves. 
104.11 [And money thus circumstanced shall be deemed as part of the personal estate of one 
who might have aliened it, there being no other use but to himself. Chichester v. BickerstafF, 
2 Vern. 295. Pulteney v. Earl of Darlington, 1 Bro. Ch. R. 236. Wade v. Pagett, 1 Bro. Ch. 
R. 368. ; but see Lechmere v. Earl of Carlisle, 5 P. Wms. 220. Ca. temp. Talb. 90. S. C — 
Where land is agreed or directed to be gold, it seems the creditors of the bargainor may compel 
the heir to convey the land. Best v. Stamford, 1 Salk. 154. (c) Therefore the personal 
estate of a man, who, in consideration of marriage with an orphan of a citizen of London, 
had covenanted to take up his freedom of the city, was divided according to the 
custom, though the covenant was not performed. Frederick v. Frederick, 1 P. Wms. 710. 
iBro.P.C. 7.] 

3. Of the Manner in iiohich they are to he performed. 

If an agreement be to quit the possession of lands, the court Qerrard v. 
will not decree a conveyance of the lands themselves ; but if the Vaux, Vern. 
agreement was to convey the lands, it is said that the court would 121. How 
have decreed the agreement, though the party was not apprized agrfements 
what estate he hadlr. the lands. Z'j^ZZ- 

cuted at law, vide heads of Assumpsit and Covenant, 

If 



144 



AGREEMENTS. 



If one is bound to transfer 300/. East-India stock before such 
a time, which he neglects to do, and the stock is much risen, he 
shall be obliged to transfer the stock in specie, and account for 
all dividends from the time that it ought to have been trans- 
ferred. 

sure of damages at law for not transferring stock, see Shepherd v. Johnson, 2 East, 211. 

M'Arthur v. Lord Seaforth, 2 Taunt. 257. Harrison v. Harrison, 1 Car. & P. 412.j| 

If a creditor agrees with his debtor to take less than his debt, 
so that it be paid precisely at such a day, and the debtor fails of 
payment, he cannot be relieved, for cujics est dare, ejus est dis- 
ponere. 
lieve in such case, if the security be bettered. 1 Ch. Ca. 110.] HSee ante, Accord and Satis- 
faction!^ 

If money be lent on a mortgage, at 5 per cent, and the mort- 
gagor covenants io pay 6 per cent, if he make default for the 
space of sixty days after the time of payment ; if he makes de- 
fault, the court will not relieve, this being the agreement of the 
parties, [a) 
Wyse, 2 Vern. 289., and in Shode y. Parker, 2 Vem.3I6., the interest was reserved at 6l. per. 
cent, with an agreement to accept 5l. per cent, if duly paid ; a statement doubtless correct, as 
it reconciles the case to the other decisions upon this point, which at present it clashes with. 
See Jury V. Cox, Pr. Ch. 160. Walmsley v. Booth, Barnard. Ch. R. 481. Nichols v. May- 
nard, 3 Atk. 519. 5 Burr. 1374.] USeejaoii. tit. Mortgage}^ 

If a lessee for a long term of years covenants to lay out 200/. 
upon the premises within the first ten years, and lays out but 
30/. and after the expiration of thirty years of the lease, the 
lessor brings an action o^ covenant, and recovers 150/. damages, 
equity will neither relieve against the damage, nor decree the 
money to be now laid out in the improvements ; for though the 
damages seem excessive, yet the jury were proper judges ; and 
to degree it to be laid out now the lease is almost expired, is not 
proper ; for it is probable the lessee would not be so careful in 
laying it out in lasting improvements, as he would have been if 
laid out at first. 

II If a regular corporate resolution has been passed, and upon 
Queenbo-°"° ^^^ ^^^^^ *^^ ^^' expenditure has been incurred, the court will 
rough, 1 Sim. compel the corporation to make a legal grant in pursuance of the 
resolution, though not under the corporation seal. 

Where there is a contract to sell at a valuation, by A., B., and 
C, the court will compel the vendor to permit the valuation. 

Where the vendor of an estate having lost his title-deeds, 
agreed to give real security for the title, the court held that per- 
sonal security was not sufficient, and that he must purchase real 
estate for the purpose. 

If a person possessed of a term, contracts to sell the fee, he 
rSwans't. 54.; *^^""ot compel the purchaser to take, but the purchaser can com- 
andseeioVes. pel him to convey the term, and the court will arrange the 
316. equities between the parties. 

Ormond v. Equity has the power to compel the specific performance of a 

Anderson, complete contract, but cannot add any term not agreed on.]! 
2 Ball & B 569. ; and see Id. 28«. 

(C) Of 



Gardner v. 
PuUen, 2 Vern. 
394. Vide 
xupr^CB), 1. 
note c. II And 
as to the mea- 



Vern. 210. 
[Ambl. 332. 
But qu. whe- 
ther equity 
will not re- 



2 Vern. 134. 
Halifax v. 
Wiggins, 
[(a) As this 
case is stated in 
Lady Holies v. 



Vern. 31 6. 
Barker v. 
Holder, 1 Eq. 
Ca. Abr.28. 
pi. 5. S. C. 



Marshall v. 



& Stu. 520 

Morse V. 

Merest, 

6 Madd. 26. 

Walker v. 

Barnes, 

3 Madd. 247. 

Wood V. 
Griffith, 



(C) Agreements withiJi the Statute of Frauds. 145 



(C) Of Parol Agreements, or such as may be said to be 
within the Statute of Frauds and Perjuries, 

II 1. Of the Firsts Second^ and Third Sections of that Statute.^ 

T^HE common law required no other solemnity in passing lands ^o. Lit. 48. 

or tenements, but that of livery and seisin, which being a e'|o q'n' /-i, 
translation of the feud coram paribus curtis^ and testified by them, j^qiJ^ Abr. 7. 
was held an act of sufficient notoriety to direct the lord of whom 
to demand his service, and strangers against whom to commence 
their actions ; but now, 

By the 29 Car. 2. c. 3. § 1. it is enacted, " That all leases, 29 Car 2. c.5. 
" estates, interests of freehold, or terms of years, or any uncer- § ^' 
" tain interest of, in, or out of any messuages, manors, lands, 
*' tenements or hereditaments, made or created by livery and 
" seisin only, or by parol, and not put in writing, and signed 
*' by the parties so making or creating the same, or their agents 
" thereunto lawfully authorized by writing, shall have the force 
" and effect of leases or estates at will only, and shall not, either 
" in law Qr equity, be deemed or taken to have any other or 
*' greater force or effect ; any consideration for making any such 
** parol leases or estates, or any former usage to the contrary 
" notwithstanding. 

" Except leases not exceeding the term of three years from § -• 
" the making thereof, whereupon the rent reserved to the land- 
" lord, during such term, shall amount unto two third parts at 
" the least, of the full improved value of the thing demised." 

Also it is enacted, " That no leases, estates or interest, 5 '• 

*' either of freehold or terms of years, or any uncertain interest, 
** not being copyhold or customary interest of, in, to or out of 
*' any messuages, manors, lands, tenements or hereditaments, 
" shall be assigned, granted or surrendered, unless it be by 
** deed or note in writing, signed by the party so assigning, 
" granting or surrendering the same, or their agents thereunto 
*' lawfully authorized by writing, or by act or operation of law." 

11 Notwithstanding the words of the first section, it is settled Clayton v. 
that parol leases for more than three years have the effect of Blakey, 
leases from year to year, and require a notice to quit, in order ^„/g^ ' ' ' 
to determine them, the meaning of the statute being that such 5 Term R. 471. 
leases shall not create a term. and Holt's 

N.P.C. 47 

A parol lease for three years, to satisfy the statute, must Rawlins v. 
commence from the time of making, and cannot be made to r^ "m^'sc • 
commence at a subsequent day. and see Ryl'ey 

V. Hicks, Stra. 651. Legg v. Strudwick, 2 Salk. 414. 

Where a lease had been made by deed for twenty-one years Hoby v. Roe- 
to A.., who afterwards took B. into partnership, and A. and B. ^"JJ^' "^ T^"""-^- 
made a parol agreement with the landlord, that if he would en- 
large the building, they would pay him 10 per cent, on the cost, 
in addition to the original rent, for the rest of the term, which 

Vol. I. L exceeded 



140 



AGREEMENTS. 

excccdeil three years, and the new building was consequently 
made, the Court of Common Pleas held that this agreement 
was not within the statute, for that as whatever was subsequently 
built became part of the premises demised, it was a collateral 
contract. 

Though the statute does not require that an assignment should 
he by deed, it absolutely requires it to be in writing, and there- 
fore, where a parol assignment was made of a lease from year 
to year granted by parol, it was held void under the statute. 

The mere cancelling, in fact, of a lease, is not a legal sur- 
render. 
Archbishop of York, 6 East, 86. ; and see Doe v. Thomas, 9 Bam. & C. 288. 

A surrender of a lease may be made without deed ; as where 
a mortgagee wrote on the mortgage-deed, " Received of ^. B. 
" for principal and interest, and I do release and discharge the 
** within premises from the term of 500 years," this was holden 
a sufficient surrender. 

If the landlord accept an under-tenant as his tenant, with con- 
Cook, 2 Barn, sent of the original lessee, and distrain upon his goods, this 
* i^'^'pi'' amounts to a surrender of the original tenant's term, by oper- 
v"scuUhorpe* ation of law, though there is no surrender in writing. 
1 Barn. & A. 50. Stone v. Whiring, 2 Staik. 235. Hamerton v. Stead, 3 Barn. & C. 478. 
Johnstone v. ^"^ ^ ^^^ notice to quit, though accepted by the landlord, 

Hu.ldlestone, cannot operate as a surrender. 

4 Barn. & C. 922 

Whitehead v. 

Clifford, 

fi Taunt. 5 18.; 

and see Ibid. 

519. 

Walls V. At- 



Farmer v. 

Rogers, 

2 VVils. C6. 

Dotting V. 

Martin, 

1 Camp. 518. 

Roc dem. 
Berkeley v, 



Fanner v. 
UojTcrs, 
8 \Vils. 26 



Thomas v. 



If the landlord accept possession of the demised premises 
from the tenant, he cannot subsequently sue him for use and 
occupation, 
in writincr. 



although there is no surrender of the tenant's term 



cbeson, 3 Bing, 462. 



And so if the landlord let them to another tenant. || 



§ I. 



2 Jones, 108. 
Giiniorc and 



II 2. Of Agreements tmthin the Fourth Section.\i 

And it is further enacted, *' That no action shall be brought 
whereby to charge any executor or administrator, upon any 
special promise to answer damages out of his own estate, or 
whereby to charge the defendant upon any special promise to 
answer for the debt, default or miscarriages of another person ; 
or to charge any person upon any agreement made upon con- 
sideration of marriage, or upon any contract or sale of lands, 
tenements or hereditaments, or any interest in or concerning 
them ; or upon any agreement that is not to be performed 
within the space of one year from the making thereof, unless 
the agreement ujion which such action shall be brought, or 
some memorandum or note thereof, shall be in writing, signed 
by the party to be charged therewith, or some other person by 
him thertunto lawfully authorized. 

111. Of Promises by Executors, Administrators, &c.|l 

The clause which enacts, that no action shall be brought, Sfc. 

to 



(C) Agj-eemenis xvithin the Statute of Frauds, (4th Section.) 147 

to charge an executor, S^c. extends not to promises made before, shutter 
though to be performed after the making of the statute; for it i Freem. 466. 
would be against natural justice, that a promise made upon good S- ^- Vent. 
consideration should be destroyed by the retrospect of a law t\?.'ti^ 
which none could divine would be made. 227! 2 Show. 

R. 1 6. S. C. ||Rann v. Hughes, 4 Bro. P. C. 27. 7 Term R. 550. n.jj 

A. promised if the widow of an intestate would permit him to Tomlinson v. 
be joined with her in the letters of administration, that he would ^^H'^^bl. 
make good any deficiency of assets to pay debts. Lord Hard- 
isoicke held this promise not within the act ; nor within the first 
branch of the section, for A. was not administrator at the time 
of making it ; nor within the second, for here is a new distinct 
consideration. 

The plaintiff in his declaration need not shew any note in writ- Raym. 45o, 
ing, but it will be sufficient for him to produce it on the trial; ^^^' ^ Jones, 
but if such promise is pleaded in bar of another action, it must g gaik ^i9 
be shewn to be in writing, so that it may appear to the court to 
be such a promise upon which an action will lie. 

y2. Of Promises to answer for the Debt, Default, or Miscarriage 

of another, jj 

On the clause, that no action shall be brought on a special Salk. 27. pi. 
promise to ansivei-for the debt, defaidt, &c. of another, it has been V'l^^ I* ^^* 
resolved that if A. is about hiring a horse from B,, and C, to 249. LdrRaym. 
encourage him to lend the horse, promises that^. should deliver 224. sLd. 
him safe, this is a collateral promise, and an undertaking within Raym. 
the statute; for C. subjects himself to an action on the breach o°^^'„^t^^^j 
of the original contract by A., against whom detinue lies on the 250. 
bailment. So if two come to a shop, and one of them contracts 
for goods, and the seller does not care for trusting him, where- 
upon the other says, let him have them, and I will undertake he 
shall pay you ; but if the promise be, I will see you paid ; or I 
will be your paymaster, it is otherwise. So if A. comes to B, 
and tells him, let your horse to J. S. and I will see you paid the 
hire ; there the hiring is to A. and not to J. S. who is considered 
as servant to A. So, in all cases where the whole credit is given 
to the undertaker, he alone is liable to an action. 

[A doubt was formerly entertained, whether, if the undertak- g Term R. so. 
ing of a third person were before the delivery, it were within the Cowp. 227. 
statute. But the general line now taken, is, that if the person ^ ^^- Black, 
for whose use the goods are furnished is liable at all, any promise " * 
by a third person to pay that debt, must, in all cases, be in 
writing. 

If ^., in consideration that B. will stay proceedings in an action pisi, v. Hutch- 
he had commenced against C. to recover a sum of money due inson, 2 Wils. 
from C. to him, promise to pay that money, such promise must ^'*' 
be in writing, for it is to pay a debt of another person still sub- 
sisting : but where in consideration that the plaintiff in an action 
of assault and battery against J. S. would withdraw his record, ^^ed v. Nash, 
and forbear to proceed, the defendant promised to pay him 30/. iiQ^^^ijiether 
the court held the promise not to be within the statute, for the [1,]^ case is 

L 2 consideration 



146 



AGREEMENTS. 



considerntion wns new, here was no subsistinf; debt ; it could not 
be known before the trial whether the plaintiff would recover any 
damages or not] 

\\A., without the leave or licence of the plaintiff, wrongfully 
rode the plaintiffs horse, and caused its death, and the defend- 
ant in consideration that the plaintiff would not sue y^., promised 
to pay the plaintiff for the damage sustained. Held, that as A. 
was liable to the plaintiff for the wrong, this was a collateral 
promise of the defendant, and consequently not being in writing 
was void. II 

[J. S. becoming insolvent, made a bill of sale to the defendant 
of all his goods in his dwelling-house in trust to be sold for the 
benefit of his creditors. After the defendant had taken possession, 
the landlord came to distrain for rent, and to prevent the dis- 
tress, and that the sale might go on, the defendant promised to 
pay it This promise is not within the statute.] 

ijlf -/4., at the request of B., enter jointly with him into a 
bond to indemnify a third party, and B. promise to save A. 
harmless from all loss by reason of the bond, this is not a pro- 
mise requiring writing within the statute. {a)\\ 
indemnifv the plaintiff against all costs of a tithe suit, in consideration that the plaintiff (de- 
fendant \n the tithe suit) would allow defendant to defend it in plaintiff's name. Adams v. 
Dansey, 6 Bing. 506. 

[Wherever a man is under a moral obligation (a), to do a thing, 
and another does it without request, a subsequent promise to 
pay is good, though not in writing ; as where an overseer pro- 
mises by parol to pay an apothecary who, without his knowledge, 
has administered medicines to a pauper.] 
obligation on the overseers to provide medicines for the poor is a legal one, and it is at least 
doubtful, whether in any case a mere moral obligation is a sufficient consideration to support 
an express promise; it clearly is not sufficient to raise an implied promise. See the elaborate 
note to Wennall v. Adney, 3 Bos. & Pull. 249. In Wing v. Mill, 1 Barn. & Aid. 104. the 
court held that an action was maintainable by an apothecary against the overseer of the 
parish where a pauper was settled, for medicines furnished to the pauper in another parish 
where he lived, the overseer having expressly |)roraised to pay ; — but here also there was a 
legal obligation on the overseers of the parish of settlement to provide for the pauper, which 
they had acknowledged by making him a weekly allowance. In Atkins v. Banwell, 2 East R. 
505. it was decided, that a parish where a pauper was taken ill and died, could not recover 
the price of mrdicines and necessaries furnished to him against the parish in which he was 
settled, since there was no legal obligation to reimburse the amount, and there was no express 
promise; and see Lamb v. Bunce, 4 Maule & S. 275. There could be no ground for requiring 
writing to such a promise as that in the principal case, since it is notwilhin thescopeof any clause 
in the statute ; and see 1 Smith R. 305. 1 Dow. & Ry. 541. 1 Car. & Pa. 132. 5 Barn. & C. 738.|| 
Goodman v. |jSo also a promise to pay the debt of a debtor, in consider- 

& A^*97 • '^"d ^'*°" ^^ ^"^ being discharged out of custody, is an original 
promise, and not within the statute, since the debt is ex- 
tinguished by the discharge, and the debtor ceases to be liable. 
Castling v. Aubert, 2 East, 325. Anstey v. Marden, 1 New R. 124. 

So also a promise to execute a bail-bond for A. B., in con- 
sideration of the plaintiff forbearing to arrest him, is not within 
the statute. 



not overruled 
by Kirkhani 
V. Marter, 

wPII 

Kirkhiun v. 

Marter, 

a Barn. & A. 

613. See 

Maggsv. 

Ames, 4 Bing. 

474. 



Williams r. 
Leaper, 
.•J Burr. 1886. 
2 Wils. 308. 

IjBampton v. 
r*ftulin, 
4 Bing. 264.|| 

Thomas v. 
Cook, 8 Barn 
& C. 728. 
(a) Nor is a 
promise to 



Watson V. 
Turner, Scacc. 
Tr. 7 G. 3. 
Bull.N.P.284. 
(4th edit.) 
11(a) But the 



sec Williams 
V. Leper, 
2 Wils. 308. 
Jarmain v. 
Algar, Ry. & 
Moo. 348.; 
and sec 4 Bing. 
474. 

Cbater v. 

Beckett, 

7 Tcnn R. 20! 



But an agreement to pay a composition on the debt of 
another is within the statute, since the debtor remains liable. 

So 



(C) Agreernenis mthin the Statute qf Frauds. (4th Section.) 149 

Bo also in cases of promises to pay for goods, SfC. supplied to Anderson v. 

a third party, if the third party is liable at all the promise is Hayman, i H. 

within the statute, and requires writing; but if the articles are Black. 120. 

supplied entirely on the credit of the promiser, so that the third ^^*.^"" ^' 

party is not liable, then the promise is not within the statute. 2 Term JI.80. 
Jones V. Cooper, 2 Term R. 80. Browning v. Stallard, 5 Taunt. 450. Colman v. Eyles, 
2 Stark, 62. ; and see 4 Bing, 474. 

And there is no distinction whether the promise is made before Matson v. 
the goods are supplied, or afterwards. aTennR so 

The word *' agreement" in the fourth section, is held to import Wain v. Warl- 
not merely the promise on one side, but also the consideration on ters, s E^jst, lo. 
the other ; and, therefore, in cases within the section it is necessary g g /"^ag 
that both should appear in writing, and parol evidence is inad- Saunders v. 
missible to shew either, [a) Where, however, a letter was written Wakefield, 
by the defendant to the plaintifTs attorney, undertaking to pay the ^ Barn. & A. 
debt of another, parol evidence was held admissible to shew the ^^^ ^-^-^^''^an 
amount, and also that the person receiving it was the plaintiff's 15 ]5agt cj^^. 
attorney ; and in several late cases the courts have gathered a (a) This de- 
sufficient consideration from the import of the instrument, where cision was 
it did not appear in very clear terms on the face of it. TmtA^FMoii' 

in Ex parte Minet, 1 4 Ves. 190., and in Ex parte Gardom, 15 Ves. 28S. his lordship decided 
against it ; but its authority is now established by Saunders v. Wakefield, 4 Barn. & A. 595* 
and Jenkins v Reynolds, 5 Bro. & Bing. 14.' 

Thus where the defendant wrote a letter to the plaintiffs, Boehm v. 
**our mutual friends, Messrs. JR. J. S., having accepted the Campbell, 
" underwritten bill (h'awn on them by your firm, I hereby give ^ ^}"^'}f'' . 
" my guarantee for the due payment of the same, should it be ^"gtace *^'^™ 
*' dishonoured by the acceptors;" and a copy of the bill was 1 Holt,N.'p.C. 
at foot: the court held that the consideration of forbearance to 15>. Pace v. 
sue I{. J. (S., and of giving them time by taking a bill, suffi- Mi""sl'> 1 Bing. 
ciently appeared on the face of the guarantee to satisfy the seifv^Mosd" 
statute of frauds. 5 Bro. «ife Bing' 

211. Stead v. Liddard, 1 Bing. R. 19(5. Benson v. Hippius, 4 Bing. 455* 

But where the guarantee was in these words, "To the amount Jenkins v. Rcy- 

** of 100/. consider me as security on J. CJs account; " it was ^'i|?' ^ ^'■'^• 

held insufficient, for want of a consideration appearing. ^^^^ '"S* A^ ' 

V. Bromfield, 2 Chitt. 205. Morley v. Boothby, 3 Bing. 107. 10 Moo. 395. 

Where the original guarantee is in writing, so as to satisfy the Gibbons v. 

statute of frauds, it is not requisite that a subsequent acknow- M'Casland, 

ledgment of the guarantee, relied on to take the case out of the ^ Barn. & A. 

statute of limitations should be also in v/riting ; a parol ac- ^^°*ijefore ^he 

knowledgment is sufficient. 9 q. 4. c. 14. : 

for which see tit. Limitation qf Actions (E). 

3. Of Agreements made upon Consideration of Marriage. 

It is now settled, notwithstanding former decisions to the con- (a) Philpot v. 
trary (a), that this clause does not extend to mutual promises to }X''7*'"'r 
marry; consequently such promises are binding, although not ]^>eenj,2'4i. 
reduced into writing and signed by the party. {b)\\ S, c. ('/>) Cork 

V. Baker, 1 Stra. 24. Harrison v. Cage, Ld. Raym. 386.; and see loVcs.43«. Bull. 
N. P. 280. 

L 3 If 



1^0 AGREEMENTS. 

A5r.E(L 19. If a parol agreement is agreed to be reduced into writing, and 

'''i^ S C^""* in part executed, but the reducing it into writing is prevented 

Free. Ch. 526. ^y ^raud, it may be decreed in ecjuity ; as if upon a marriage 

S.C. Stra.236. treaty instructions are given by the husband to draw a settle- 

S. C. Gilb. ment, and by him privately countermanded, and afterwards he 

S*c ^'bf*^' '^^"^^ *" ^^^^ woman by persuasions and assurances of such settle- 

Ch. k. 565?" ment to marry him. 

Abr. Eq. 20, So where the defendant on a treaty of marriage for his daughter 

2 Vem. 373. with the plaintiff, signed a writing comprising the terms of the 

:.' "P agreement, and afterwards designing to elude the force thereof^ 
mention matle o, i^ i- °*'i il-j \ ^ ^ I 

of the fraud, ^"d get loose from his agreement, ordered riis daughter to put 

only that the on a good humour and get the plaintiff to deliver up that writing, 
father con- ^nd then marry him, which she accordingly did, and the de- 
match *° ^ *^ fendant stood by at a corner of the street to see them go by to be 

* married ; and the plaintiff was relieved on the point of fraud. 

Fr em" 29 f ^" ^ ^^^^ exhibited for a marriage portion, the chief evidence 

S .C. Where a ^^ support it was a letter proved to have been written by the 
letter from the father's direction, where it was said he would give 1500/. por- 
father, pro- tion with his daughter, and that he was afterwards privy to the 
don"and''a '^" "^^^""iag^, and consented to it, and the portion was decreed the 
'marriage had l>usband. 

in pursuance thereof, has been held sufficient, vide 2 Vent. 361. 2Vern.200. sCh.R. 157. 
Prec. in Chan. 561. Where an uncle in his letter promised his niece lOOO/. portion ; but in 
the same letter dissuaded her from marrying the person ; Lord Chancellor would not decree 
the payment, but left the party to his action at law. 2 Vern. 202. [A letter from a father to 
his daughter that he will give her 3000/. not shewn to the husband, who afterwards accepts of 
£000/. under a will, is no foundation for a decree. See a different state of this case in 
9 Mod. 3. 2 P. Wms. 65. Nor is a letter promising a portion, but not reducing it to any cer- 
tainty. Hall V. Butler, Eq. Ca. Abr. p. 7. Gilb. Lex. Prsetor. 243. For a letter cannot be 
set up as an agreement unless the terms of the contract are distinctly set forth therein. Sea- 
good V. Neale, 1 Stra. 426. Pr. Ch. 560. Clerk v. Wright, 1 Atk. 13.] j'See Luders v. Anstey, 
4Ves. 501. 5Ves.216. The amount of consideration and the subject matter must appear. 
Kennedy v. Lee, 5 Meriv. 44 1.|| [But a letter, (though not signed) referring to, and promising 
to perform an agreement in w;hich the terms are set forth, is sufficient. Tawney v. Crowther, 
3 Bro. Ch. R.318. ||And it is said parol evidence is admissible to shew what l^ras the thing 
rclerrcd to. Clinan v. Cook, 1 Scho. & Lef. 53. ; and see Brodie v. St. Paul, ) Ves. jun. 326. 
And a letter is binding, though the writer look to the execution of a more formal instrument. 
I'owle V. treeman, 9 Ves. 351. Whether a note written in the third person offering to pur- 
chase and accepted, is a sufficient agreement, qucsre Mofison v. Tumour, 18 Ves. 175. The 
court will not decree a performance on letters, unless on a fair interpretation they import a 
concluded agreement. Huddlestone v. Briscoe, 1 ] Ves. 59 1. Stratford v. Bosworth, 2 Ves. & 
A ^'*^' iv/ 1 1 ^^^ ^°®*^ ^'* Conynghame, 1 1 Ves. 550. Selby v. Selby, 3 Meriv. 2. Boys v. 
Aycrst, 6Madd.316. Randall v. Morgan, 12Ves.67.|| Qzi. Whether a court of equity will 
decree an agreement entered into by letter, if a deed appear to have been afterwards framed 
/ 1 %1k' executed), varying the terms expressed in the letter ? Cookes v. Mascal, 2 Vern. 35. 
ur It the terms be varied by parol ? Jordan v. Sawkins, 5 Bro. Ch.R. 388. See 2 Ch. Ca. 180. 
ruzgiD. 21 o. 2 balk. 444. ||Whether a settlement made after marriage, reciting a parol agree- 




a^cement m wntmg may be discharged by parol, see 1 Vern. 240. 2 Ves. 376. A bond 
orw,:i «,^ r woman to her intended husband, conditioned to settle an estate upon him in fee, is 
f.^ ntl^.!;f *" ^ the agreement so specified in the condition on a bill in equity to carry it 
Sn^7f a ' \°^ ''•^'^ ^""^ *' '^^- ^'«""el V. Buckle, 2 P. Wms. 242. it is a sufficient 
3 Atk 50T P^''v"' « "?TJ'^''^""^'^"^''«"^scribe a deed as a witness only. Welfordv.Beazelv, 
itmon« nf'.'Ko .f.r* •. i' "^- '^'^ *° t''^ signature, in order to comply with the requi- 

nnd TeL k h,Tth ; V"T- ^^''^ '''*^ ^^''''' ^^ 8'^'"g authenticity to the whole instrument ; 
ihcre a fj V r ^^ ^'^^'^ '^ IS immaterial in what part of the instrument it is found : bvM 
HDcrc a iiarty had given written instructions to his agent for a lease, and had inserted his 



(C; AgreetnenU within the Statute of Frauds. (4th Section.) 15 J 

name in those inetructiona as applicable only to a particular purpose, the Court of Exchequer 
held that this did not amount to a sufficient authentication. Stokes v. Martin, 1 P. Wms. 771. 
note 1. It was formerly thought necessary that both parties should sign; but in the case of 
Cotton V. Lee, before the Lords Commissioners, 1770, it was determined to be sufficient if the 
party charged has signed. Cited in 2 Bro. Ch. R. 564. An agreement signed by one party 
may, in some cases, be conclusive against both. Owen v. Davis, 1 Ves. 82. [[Seton v. Slade, 
7 Ves. 265.|| [But, though the contract itself must be in writing, an authority to buy, or treat 
Bs agent for another, may be good without writing. Vin. Abr. tit. Contract and Agreements (H), 
p. 45. Wedderburne v. Carr, in the Exchequer, Tr.T. 1775. S Wooddes. 427.] ||Coles v. 
frccothick, 9 Ves. 254. 250. Clinan v. Cooke, 1 Scho. & Lef. 22. Barry v. Barrymore, Ibid. 
28. Emmerson v. Heelis, 2 Taunt. 38.|| 

But where on a marriage treaty the lady's father proposed to Abr. Eq. 21. 
give 4500/. portion, and the husband v^^as to settle 4 or 500/. per Bawdes and 
ann. for a jointure; the father and intended husband went to Amhnrst. [Pr. 
Mr. Minshid's chambers, who hearing the proposals on both ^'^- \^?'^' S' 
sides took down minutes or heads thereof in writing, and the ^j^/te's ob- 
same day gave them to his clerk to draw a settlement according servations up 
to the terms of the agreement ; the next day the father fell sick on this case, 
suddenly, and died in two hours after, and the next morning the 1, j ^^p^f 
marriage was consummated; and on a bill brought to have a v. Trecothick^ 
specific performance of the agreement, my Lord Chancellor de- 9 Ves. 254. 
creed it to be within the statute oi frauds, and said he knew no Griffin v. Grif- 
case where an agreement, though written by the party himself, fi"»6Ves.i79.n. 
should bind, if not signed or in part executed by him [a) ; and ^ Harrop 
that those preparatory heads might have received several alter- 7 Ves. 541. 
ations or additions, or the agreement might have entirely broke Selby y. Selby, 
off upon some further enquiry of the party's circumstances ; and '^ ^^^^•■'v- 2.II 
this decree was thought very just by the bar, who all agreed si<Tned and 
with my Lord Chancellor, that if the marriage had been on the given by ahus- 
foot of this writing, and the father had been privy and consent- band to his 

ing to it, that he should afterwards have been oblig-ed to execute ^^^'l previously 
1 .° ^' , f. =" to their mar- 

his part thereof. riage, promis- 

ing to rectify a mistake in the settlement, in consideration of which she was induced to execute 
it, was holden to be part of the settlement, and binding on the husband and his assignees, 
Tyrrell v. Hope, 2 Atk. 558.] 

On the marriage of the plaintiff with the defendant's daughter, 25 Jan. 1724. 
the defendant promised to give her 450/. portion, and accordingly 9" ^''^^ ^"'^ 
paid the plaintiff 200/. in part, but took a bond from him for it adjudged' 
till a suitable settlement should be made, and the defendant him- between San- 
self gave particular directions concerning the settlement, which sum and 
was drawn accordingly and engrossed; but before it was executed Butter, 
thp plaintiff's wife died, and the bill was brought to have the 
200/. bond delivered up, and the remaining 250/. paid ; the de- 
fendant pleaded the statute o^ frauds and perjuries, the agree- 
ment not being reduced into writing and signed by the parties ; 
and by way of answer denied that the 200/. was paid in part of 
the portion, but said it was lent the plaintiff, and the bond given 
for it ; and the plea was allowed ; for if the marriage should be 
looked upon as an execution of the agreement on the one side, 
so as to take it out of the statute, it would entirely evade it; for 
all promises of this kind suppose a marriage either already had 
or to be had. 

L 4 114. Of 



16^ 



AGREEMENTS. 



Attorney- 
General V. 
Day, 1 Ve«. 

SI 8. ||01ng(len 
▼. Uradbcar, 
12 Vcs. 466.11 



Ves. 931. 



IbkL 



Cox ▼. Peclo, 
2 Bro. Ch. R. 
S34. 



n*. OfContracts for Saleof Lands,Tenements,andHereditaraents.|| 

[A judicial sale of an estate under a decree of the Court of 
Chancery is not within the statute. Thus A. being likely to die, 
made a conveyance of a real estate in favour of a charity, and 
then made a will, by which he gave 3000/. (the exact value of 
that land,) and also 250/. to the same charity, and gave the 
estate to D. (wife of B.) and C. A bill was brought for an ac- 
count, and for the direction of the court for a settlement of the 
estate under the will ; and a decree was had thereupon, and the 
master was thereby directed to receive a scheme for carrying the 
conveyance into execution ; the foundation of part of which was 
to consider, in what way the money should be laid out, and a 
perpetual fund created for the maintenance of the charity. The 
master reported a scheme for laying out the money in the pur- 
chase of lands ; and the case being set down to be heard on the 
matter reserved, the court made a decretal order confirming the 
master's report, and ordering that the scheme should be approved 
of, and the other matters therein carried into execution. These 
directions were all acquiesced under by B. and D. who survived 
him. After her (Z).*s) death, an information was brought on 
behalf of the charity, together with the administratrix of D. to 
have this purchase carried into execution by the aid of the court 
against the devisee of the heir at law of Z). and the infant son of 
C. the co-devisee with Z). And it being objected that there was 
no agreement signed pursuant to the statute of frauds, one ques- 
tion was, whether the transactions which passed in the life-times 
of Z). and C. amounted to a binding agreement on them for the 
Bale of the lands ? And Lord Hardwicke held, that here was 
such an agreement as the court ought to execute notwithstanding 
the statute ; this being a judicial sale of the estate. And upon 
the same principle it is holden that purchasers before the masters 
are out of the statute, and the court will in such cases carry into 
execution against the ropresentative, a purchase by a bidder be- 
fore the master, without the bidder's subscribing, after confirm- 
ation of the master's report that he was the best bidder : the 
judgment of the court taking it out of the statute. So if the au- 
thority of an agent who subscribed for a bidder before the master 
cannot be proved, yet if the master's report can be confirmed, 
the court will carry it into execution, miless there be some fraud. 
And Lord TJiurl&w was of opinion, where the attornies, con- 
cerned in a suit by a first mortgagee for a foreclosure, agreed, 
with respect to the final decree, that the estate should be sold, 
the first mortgagee paid principal and interest, and the remainder 
paid to the second mortgagee, but that the former should in the 
mean time take a decree ; that if the first mortgagee made an 
improper use of the decree, this agreement, though by parol, 
might be read, on an applicatian to open the foreclosure, as an 
agreement relative to a decree ; the attornies being competent to 
make agreements relative to the orders of the court. And upon 

that 



(C) Agreements within the Statute of Frauds. (4th Section.) 153 

that ground he admitted the evidence of it de bene esse, though 
it had been rejected at the Rolls, because it was not in writing, 
and therefore void under the statute.] 

If there be a parol agreement for the purchase of lands, and ^^'^' ^q- 19. 
a bill brought for a specific execution thereof, and the substance Eq^R 55 
of the agreement is set forth in the bill, and confessed by the s. C. Gilb. Ch. 
defendant's answer, the court will decree a specific execution, 257. S, C. 
because there is no danger of peijury, which was the principal ^^' ^' ^^^\ 
thing the statute intended to prevent. ^^^ ^ Tweed ' 

Pr. Ch. 374. Lacon v. Martins, 5 Atk. 3. Attorney-General v. Day, 1 Ves. 221. S. P. Gunter 
V. Halsey, Ambl. 586. Potter v. Potter, 1 Ves. 441. [See Eyre v. Ivison, Scac. Tr. 1 785. cited 
2 Bro. Ch.R. 563. Stewart v. Careless, Scac. April 1785, cited Ibid. 564., and Rondeau v. 
Wyatt, 2 H. Black. R. 68.] jjBut according to the modern doctrine, if the defendant insist on 
the statute, a specific performance will not be enforced, though the agreement is confessed j 
for as the defendant cannot protect himself from answering whether there was an agreement 
or not, it would be unjust to take the case out of the statute on the ground of his admission. 
Cooth V. Jackson, 6 Ves. 39. Rowe v. Teed, 15 Ves. 375. Blagden v. Bradbear, 12 Ves. 471. 
Walters v. Morgan, 2 Cox's R. 369. As to whether an agreement confessed will be enforced 
if the party do not insist on the statute, see Ex parte Whitbread, 19 Ves. 211. 1 Fonb, on Eq. 
180. note (d).ll [If the party himself die, his heir will, it seems, be bound on a bill of revivor. 
P^r Lord Hardwicke, 1 Ves. 221. And upon this principle, equity will decree an agreement on 
evidence of its having been confessed by a party to it, although it be denied by his answer. 
As where an agreement was proved by one witness only, and positively denied by the defend- 
ant's answer; but there was proof in the cause that the defendant had confessed the agree- 
ment : the Master of the Rolls offered to direct an issue to try the agreement if the defendant 
desired it ; but he declined that, unless his honour would make an order that his answer should 
be read at the trial, which his honour refused, there being circumstances to corroborate the 
evidence of the single v/itness, and decreed the agreement to be carried into execution. 
Only V. Walker, 3 Atk. 407- Where the two defendants in a suit confessed an agreement in 
their answer, but different from that stated in the bill, and an agreement different from either 
was proved by the testimony of only a single witness. Lord Loughborough C decreed a per- 
formance pursuant to the terms of the agreement confessed by the answer. Mortimer v. 
Orchard, 2 Ves. jun. 243.] ||If the party to an agreement is dead, so that his answer cannot 
be had, evidence of his parol confession of the agreement in his lifetime is inadmissible. 
Perchard v. Benyon, 1 Cox's R. 214.1| [In what manner, and in what cases the statute may 
be pleaded to a bill for the performance of a parol agreement, vide in Whitbread v. Brock- 
hurst, 1 Bro. Ch. R. 404. Whitchurch v. Bevis, 2 Bro. Ch.R. 5^9., and the cases there men- 
tioned. See also Mitf. Eq. Tr. 217. (3d edit.) Taylor v. Beach, 1 Ves. 297.] pvans v. 
Harris, 2 Ves. & B. 361. Morison v. Tumour, 18 Ves. 175. Strickland v. Aldridge, 
9 Ves. 516.|| 

[The plaintiff agreed with the defendant to sell him a house Hawkins v. 
for 640/. and by consent of both parties an attorney was employed holmes, i P. 
to make a draft of the conveyance : which the attorney accord- '"^' * 
ingly prepared and sent to the defendant, who made several 
alterations therein with his own hand, and delivered it back to 
the attorney to be engrossed; upon which a time was appointed 
for the plaintiff and defendant to meet at a tavern to execute the 
writings, and for the latter to pay the money. The plaintiff and 
his attorney came to the tavern, where the plaintiff executed the 
writings, and having gotten the conveyance registered, (the house 
being in Middlesex,) brought his bill against the defendant to 
compel him to pay the purchase-money. The defendant pleaded 
the statute ofjrauds; and it was holden he was not bound, he 
not having signed the agreement. 

A. agreed by parol with B. for the purchase of lands. B. de- Whaley y. 
livered a rent-toll which was dated and altered in his own hand- Bagenal, 
writing, and shewed by the title of it that an agreement had been J^^fo-P-^- 

made 



154 AGREEMENTS. 

made between them for the sale of the estate at twenty-one years' 
I)urchase. An abstract of the title was also delivered to A. to- 
gether with the deeds, in order to be compared with the rent-roll, 
B. likewise wrote letters to several of his creditors, informing 
them that he had contracted with A. for the sale of his estate at 
twenty-one years' purchase, and sent the tenants to treat with A. 
for the renewal of their leases. Notwithstanding all these cir- 
cumstances, upon A.'s filing a bill for a specific performance, the 
plea of the statute ofjrauds was allowed by the House of Lords 
both as to the discovery and relief. 
2 Bro. Cb. R. If there be general instructions for an agreement consisting of 
^^' material circumstances, to be hereafter extended more at large, 

and to be put into the form of an instrument with a view to be 
signed by the parties, and no fraud, but the party takes advan- 
tage of the loais pcenitenticE, he shall not be compelled to perform 
such an agreement as that, when he insists upon the statute of 
frauds. Per Lord Thurlonso.'] 
O'Connor V. H-^" agreement for an abatement of rent of land is within the 

Spaight, statute, and must be in writing. 

1 Scho. & Lcf. 306. 

Crosby v. So also a contract for the purchase of a growing crop of grass, 

Wadswortb, ^^ |jg mown and made into hay by the vendee, but no time 
set! vkle 1 Lord heing fixed for the mowing, is a contract for an interest in land 
Raym. 182. within the statute, and is voidable if not in writing, and may be 
discharged by a parol notice from the vendor, before any act is 
done in part execution of it. 
Scorell V. go also the sale of growing underwood, to be cut by the pur- 

1 Y & chaser, has been held to convey an interest in land under the 
J. 396. fourth section. 

Teal V. Auty "^^ ^^^^ ^^ ^^ ^ '^^^^ of growing poles. 

2 Brod. & B. 99.; sed vide 9 Barn. & C. 561. 

Eramerson v ^ ^^^° ^ ^^^^ °^ growing turnips, no time being fixed for their 

Heelis,2Taunt. removal, and their degree of maturity not being stated. 
S8. ; and see Waddington v. Bristow, 3 Bos. & P. 452. 

Parker v. But where the contract was for a crop of potatoes, to be taken 

ii^E^r'sel ^^ ^^^ vendee immediately out of the ground, it was considered 
Warwick v. * ^ ^ sale of personal chattels, and not within the fourth section. 
Bruce, 2 Maule & S- 205, ; and see Poulter v. Killingbeck, 1 Bos. & P. 397. ; and Evans v. 
Roberts, 5 Barn. &C. 836. which seems to over-rule Emraerson v. Heelis; and see Smith v. 
Surman, 9 Barn. & C. 561., where a contract for sale of growing timber, at so much per foot, 
was held not within the fourth, but within the seventeenth section. 

Broc^kiYl ^ licence to enjoy an easement is good without writing, this 

8Eajt7308. "°' ^^'"S ^^ interest in land within the statute. 

Russell V. ^ deposit of title-deeds, by way of security, is held to consti- 

Russell, taX-j an equitable mortgage, though unaccompanied by any 

1 Bro. C. R. writing. This decision has been much regretted as letting in 

uXh^uYes ^^^°^ evidence as to the terms of the deposit, and leading to 

403: Norris*^v! ^^i^cussion on the truth and probability of evidence, which it was 

Wilkinson, ^^^^ object of the statute to exclude. But the doctrine is now 

i2Ves. 197.; settled. 

and see tit. Mortgage, (A). Vol. V. 

It 



(C) Agreements within the Statute of Frauds. (4th Section.) 155 



It has been repeatedly decided (a), that, on a sale of goods by {a) Simon v. 
auction, the auctioneer is the agent of both parties, and able to Motives, 
bind both within the statute by his signature. j 'Qlack 599 * 

Hinde v. Whitehouse, 7 East, 558.; and see 2 Barn. & C. 945. 

But the contrary has been decided (b) as to sales by auction of {b) Walker v. 
estates in land, though the principle of the distinction is not Constable, 
evident; audit has been questioned by several judges. see. Stansfield 

V.Johnson, 1 Espin. Ca. 101. Buckmaster v. Harrop, 7 Ves. 341. isVes. 456. Coles 
V. Trecothick, 9 Ves. 234. 

And in two late cases the Court of Common Pleas held the t-. 

p , , 1 p 1 1 Emmerson v. 

auctioneer an agent lor the purchaser on a sale or land. Heelis 

2 Taunt. 58. White v. Proctor, 4 Taunt. 209. 
The latter case was an action against the vendee for the Kemeys v. 
auction-duty on the sale, and the vendor afterwards filing a bill Proctor, 
for a specific performance of the contract, the Master of the f j **& w"^^* 
Rolls, on the authority of the cases in the Common Pleas, held 550. 
the auctioneer's signature sufficient to bind the vendee, and de- 
creed accordingly. The rule appears, therefore, now to be 
settled, that the auctioneer is the lawful agent of both parties on 
a sale of land, as well as of goods. 

5. Of Agreements not to be performed within the Space of one 
Year from the making thereof. 

This clause extends only to cases where, by express agree- 
ment of the parties, the contract is not to be performed within 
one year, and not to agreements depending on a contingency 
which may happen either within or beyond the year. 

Therefore an agreement to pay the plaintiff so many guineas Anon. Salk 
on the day of his marriage, was held not within the statute, 
although the marriage did not take effect for nine years ; for it 
might have happened within the year, Holt C J., and the 
minority of the judges holding contra, on the ground of the 
marriage actually happening after the year. 

So an agreement to bequeath to the plaintiff an annuity, pay- 
able yearly, from the testator's death, was held not within the biers, Execu 
statute, in an action brought against the executor, for the testa- to""* ^ Burr, 
tor might have bequeathed the annuity by will within the year. r^5%\ and 

see Smith v. Westall, Ld. Raym. 316 

But where the plaintiffs agreed to publish an expensive work Boydell v. 
of art in numbers, one number at least to be published annually, Drummond, 
and stated, they were confident they should be enabled to pro- ^ ^^^*' ^1^* 
duce two numbers in the course of every year, and the defendant jj^g subscriber 
became a subscriber, and the first number was delivered to him in such case 
within a year from the date of his subscription, it was held that is not bound, 
the case was within the statute, as it appeared to be the clear w^^^^out writ- 
understanding of the parties, that the agreement was not to be jj^ue to take 
completed within the year ; and the part performance within the in the num- 
year, by the delivery of the first numbei*, made no difference, bers, he is 
since the word " performed," in the statute, means a complete f""?^ ^"JJ^^ 
performance or consummation of the work. has accepted. 

Mavor v, Pyne, 3 Bing. 285 
And 



280., recog- 
nised by 
Wilmut J. in 
5 Burr. 1281.; 
and see Wells 
V. Horton, 
4 Bing. 43. 

Fenton v. Em- 



156 



AGREEMENTS. 



Braccgirdlev 
HeaM, l Barn. 
Hi A. 722. See 
Williams v. 
Jones, 5 Unra. 
& C. 108. 

Birch V. Earl 
Liverpool, 
9 Bam. & C. 
993. 



J 17. 



Alexander v. 
Comber, 1 H. 
Black. R. 20. 
Towers V. Os- 
borne, I Stra. 
596. Clayton 
V. Andrews, 

4 Burr. 2101. 
(o) Rondeau 
V. Wyatt, 

5 il. Black. 
R.63. sBro. 
Ch.R. 154. 
S.C. 

Cooper V. 

Elston, 

7 Term R. 14. 



Garbut v. 
Watson, 
5 Bam. & A. 
614. 



Groves v. 
Buck, S Maule 
&S.178. 

Smith T.Sur. 



And accordingly, where the defendant verbally agreed, on the 
27 JMizy, to take the plaintiiF into his service for a year from the 
30th Jwie following, it was decided, that this being a contract 
which would not be completely performed within the year, was 
within the statute, and void for want of writing. 

A contract to hire a carriage for five years, paying an annual 
sum for it, and determinable at any time on paying a year's hire, 
is a contract not to be performed within a year, and requires 
writing. 

As to the seventh section, respecting declarations of trust, 
which was improperly inserted here in former editions, see tit. 
« Trusts," (B) (C) Vol. VIII.|| 

II 3. Of Agreements mentioned in the Seventeenth Section.\\ 

By § 17. it is enacted, ** That no contract for the sale of any 
*' goods, wares, and merchandize for the price of ten pounds 
*' sterling, or upwards, shall be allowed to be good, except the 
*' buyer shall accept of p'hrt of thegoods so sold, and actually 
*' receive the same, or give something in earnest to bind the 
" bargain, or in part of payment ; or that some note or memo- 
** randum in writing of the said bargain be made and signed by 
** the parties to be charged, or their agents thereunto lawfully 
** authorized." 

II 1. What Agreements are within the Seventeenth Section, jj 

6. As to the clause respecting sales, it has been formerly 
thought, that it means only present and immediate sales, and 
does not include executory contracts, where goods are bespoken, 
and time is given by special agreement for the delivery of them, 
and payment of their value. But this construction has been de- 
nied in a recent determination of the Court of Common Pleas, 
Wilson J. dissent, (a), where an executory contract, merely a 
contract of sale, even though confessed by the defendant in his 
answer in Chancery, was determined to be within this provision. 
To this opinion, it may be added. Lord Thurlow intimated an 
incUnation, when the case was before him in Chancery. 

IJThe case of iJowrf^aM v. Wyatt has been confirmed by sub- 
sequent cases. In one case a sale of wheat by sample, to be de- 
livered by the defendant at a different place from the place of 
sale, was held to be within the clause of the statute, and the 
receipt of the sample by the buyer was held not a sufficient 
acceptance, the sample being no part of the wheat sold. 

So also a contract for sale of flour not yet ground was held 
within the statute ; and was distinguished from the case of Torwers 
V. Osborne, supra, since there the chariot ordered would never, 
but for the order, have had existence, whereas the flour was sold, 
as part of the vendor's general stock. 

A contract for a quantity of oak pins to be cut out of slabs 
and delivered to the buyer, was held not a sale of goods within 
the statute. 

But where A., being the owner of trees growing, agreed ver- 
bally 



(C) Agreements within the Statute of Frauds. (17th Section.) 15? 

bally with D. to Bell him the timber at bo much per foot, it was «"»". ^ \hin. 

held an agreement for sale of goods within the section. ^ V* '^^-Vr' . 

*= ^ and see Watts 

V. Friend, 10 Barn. & C. 446. The case of Groves v. Buck is over-ruled by Garbut v. 

Watson, sujmi; see 9 Barn. & C. 561. 

But the sale of growing underwood to be cut by the purchaser Scorell v. 
has, as we have seen, been held by the Court of Exchequer to |^^^'l> 
confer an interest in land within the fourth section. 39g . ^,jj ^^^' 

2 Brod! & B. 99. 

The circumstance of a buyer agreeing to pay a higher price Astey v. 
for goods in consideration of their being delivered at the vendor's ^j^^'^^j' o c 
expense, does not make the contract a mixed contract for the 252. 
carriage as well as the sale, so as to prevent its coming within 
the seventeenth section as a sale of goods. 

A contract for the purchase of several articles at the same time, Baldej v. 
each under 10/. and at separate prices, but in the whole amount- ^^n'^^'^' <> p 
ing to above 10/. is within the seventeenth section. ^^ ^■^^nd see 

Price v Lea, 1 Barn. & C. 156. 

A contract to procure coals for plaintiff at A., and convey Cobbold v. 

them to i?., is not a contract for sale of coals to the plaintiff Gaston, 1 Bing. 

• 1-1 R 399 

witlim the statute. 

2. Of Acceptance of Goods, and part Payment, within the 
Seventeenth Section. 

Where goods are ponderous, and incapable of being at once chaplin v. 
handed over by actual delivery, the statute may be satisfied by Rogers, 
that which is tantamount, as the delivery of the key of the ware- ^ East, 192.; 
house where they are, or other zw<//cmwofproperty, or the exercising ^ ^^ ''P'"' 
acts of ownership over them, as selling a part to another person. 

And the offering to sell them by the buyer to a third party, Blenkinsop v. 
who refuses to purchase them, is such an act as ought to be left Clayton, 
to a jury, to say whether it amounts to an acceptance or not. ' i^ itf/' 

S. C. ' "^ 

Where wine lying in the London Docks was sold without any Bentall v. 
written contract, and an order of delivery was given by the ^"^' ^ ^*™* 
vendor to the vendee, it was held that the acceptance of this 
order by the buyer was not an acceptance of the goods within 
the statute, since, till the Dock Company. accepted the order, 
they continued to hold the wine for the vendor. 

The acceptance of a sample of the goods, if part of the bulk Hinde v. 
sold, is a sufficient acceptance within the statute, but not if the Whitchouse,' 

sample form no part of the commodity. 7 bast, 558.; 

^ ^ •' Cooper V. 

Elston, 7 Term R. 14. 

Where the defendant contracted to purchase two horses of the Elmore v. 
plaintiff, and desired the plaintiff, who was a livery-stable keeper, Stone, 
to keep them at livery for the defendant, in consequence of which 1 Taunt. 458. 
the plaintiff removed them out of his sale stable into another, it 
was held that this was a complete delivery to the defendant. 

But where the defendant verbally bought a horse of plaintiff, to Carter y. 
remain for twenty days with the plaintiff without any charge, and Toussaint, 
no time was fixed for payment of the price, and at the end of the 855!^" ' 

twenty 



158 



AGREEMENTS. 



Howe V. 

Palmer, 
3 Barn. & Aid 
321.; see 
2 Carr. & P 
532. 



Rohde V. 

Thwaites, 
C Barn. & C. 
388. 



Tempest v. 
Fitzgerald, 
3 Bam. & A. 
680. See 
Tarling v. 
Baxter, 
6 Barn. & C. 
500. 



Hanson v. 
Armitage, 
5 Barn. & A. 
£37. ; ted vide 
Hart V. 
Sattley, 
3 Camp. 523. 
Baldey v. 
Parker, 
2 Bam- & C. 
44. ; and see 
Thompson v. 

Phillips V. 

Bistolli, 

2 Bara. & C. 

SU. 



twenty days the defendant ordered the horse to be sent to grass, 
but entered as the plaintifs huise, it was held that an action 
would not lie for the price, suice there was no sufficient accept- 
ance by the defendant. 

So where a quantity of tares were purchased by the defend- 
ant of the plaintiff, and they were to remain in the plaintiff's 
' possession till the defendant fetched them away, the mere cir- 
cumstance of the plaintiff's servant measuring them out and 
setting them apart in the plaintiff's granary for the defendant, was 
held not a sufficient delivery and acceptance within the statute. 

But where A. agreed to sell to B. twenty hogsheads of sugar 
without any writing, and four hogsheads were delivered to and 
accepted by J3., and A. filled up and appropriated sixteen other 
hogsheads, and informed B, they were ready, and desired him 
to fetch them away, and B. said he would take them as soon as 
he could, it was held that the appropriation having been made 
by A. and assented to by J5., the property in the sixteen hogs- 
heads passed to the latter. 

So where the defendant, while on a visit to plaintiff, agreed to 
purchase a horse for ready money, and to fetch it away about 
the 22d of Septembery and the defendant went away, and re- 
turned on the 20th of September, and then rode the horse, and 
gave directions as to its treatment, and requested it might remain 
another week in plaintiff's possession, and said he would return 
and pay for it about the 26th or 27th of September, and the 
defendant returned on the 27th to take the horse away, but 
in the mean time it had died, and the defendant refused to 
pay the price ; it was held that there was no acceptance of the 
horse within the statute of frauds, for the sale being for ready 
money, the defendant had no right to take away the horse till 
tlie price was paid, and therefore his acts on the 20th September 
could not be considered as acts of ownership. 

An acceptance of the goods by a wharfinger, in order to con- 
vey them to the buyer, is not an acceptance by the buyer within 
the statute ; for the acceptance must be such as precludes the 
buyer from afterwards making any objection to the quantum or 
quality of the goods. 

As long as the lien of the vendor remams, the possession of 
the goods is not so transferred to the vendee as to amount to 
an acceptance of them within the statute. 
Maceroni, 3 Bara. & C. 1. Mayfield v. Wadsley, Ibid. 557. 

In order to satisfy the statute, there must be a delivery of the 
goods by the vendor with an intention of vesting the possession 
in the vendee, and an actual acceptance by the latter with in- 
tention of taking the possession as owner. Therefore, where 
jewels were knocked down by the plaintiff to the defendant at an 
auction, at which the conditions were, that the purchaser should 
pay thirty per cent, upon being declared the highest bidder, and 
the residue of the price on removal of the goods, and the de- 
fendant received the jewels on their being knocked down, and 

three 



(C) Agreements within the Statute qf Frauds. (17th Section.) 159 

three or four minutes afterwards objected that he had mistaken 
the price, when the plaintiff refused to receive them again, it was 
held, that as it could not be presumed that the vendor intended, 
contrary to the conditions, to part with the goods without the 
deposit or price being paid, there was very slight evidence to 
shew that the plaintiff intended to part with the control over the 
goods when he delivered them, and that the receiving the jewels 
for a few minutes before making his objection was very slight 
evidence of an acceptance by the vendee, and that it was a 
question for the jury whether there was a delivery and accept- 
ance intended by both parties to transfer the possession. 

If the purchaser of goods draw a shilling over the hand of the Blenkinsop v. 
vendor, and return the money into his own pocket, which is Clayton, 
called in the north of England striking of a bargain, this is not '^ Taunt. 597. 
a part payment within the statute. 

3. Of the Memorandum in Writing, and the signing by the 
Party to be charged, or his Agent 

The language of the seventeenth section differs from that of Egerton v. 
the fourth, inasmuch as in the latter the " agreemenf*^ is required Matthews,; 
to be in writing, in the former, only a " note or memorandum in ^ ^^'' ^^ '^ 
writing of the bargain " is required. Therefore, where an action 
was brought for not accepting goods according to the following 
memorandum — "We agree to give Mr. Egerton \^d. per lb. for 
30 bales of Smyrna cotton, customary allowance, cash 3 per cent. 
Matthe*iSos and Turnbidl" it was objected that no consideration 
appeared for the defendant's undertaking, and that there was no 
mutuality in the agreement ; but the Court distinguished this 
from the cases on the fourth section, and held that there was a 
sufficient memorandum of the bargain to bind the parties to be 
charged and that their signatures were all that the statute re- 
quired. 

In the above case the name of the seller appeared in the me- champion v. 
morandum, although the purchasers only signed it. But where Phimmer, 
the seller alone siimed a memorandum of the bargain, and the i New R. 252^ 
buyer's name did not appear on it, it was held insufficient ; since *^" J'*"^ ^"^" 
there cannot be a contract without two parties, and the memo- 5 Xaunt. 167. 
randum would prove a sale to any other party as well as to the 
buyer. 

The memorandum may be made up of two separate writ- Saunderson v. 
ings, if they refer one to the other. Thus, in an action for Jackson, 
not delivering gin bought of the defendants, it appeared that 2 Bos. & PulT, 
at the time the order was given by the plaintiff a bill of ^^^* 
parcels was delivered to him by the defendants, headed in print 
thus: " Bought of Jacit^on 2iX\d. Hawkins, distillers;" and then , 

followed, in writing, " 1000 gallons of gin, 1 in 5 gin, 7^., 350/.;" 
and the name of the buyer appeared on the bill of parcels. 
About a month after, the defendants also wrote the following 
letter to the plaintiff: — " Sir, we wish to know what time we 
" shall send your order, and shall be obliged for a little time in 
" delivering of the remainder. Must request you to return our 
" pipes. Yours, &c Jcckson and Hawkins.^^ It was holden 

that 



160 



AGREEMENTS. 



Jackson v. 
Lowe, 1 Bing. 
R.9. 



Cooper V. 
Smith, 15 East 
103.; and see 
Boydell V. 
Drummond, 
II East, 142. 
Richards v. 
Porter, 6 Barn. 
& C. 437. 



1 Espin. 190. 
perEi/reC.J.; 
see Selby v. 
Sclby,3Meriv. 

k.2. 

Saunderson v. 

Jackson, 

S Bos. & Pull. 

238. 

Schneider v. 

^lorris, 

12 Maule & S. 

S86. 



Smon T. Me- 
tivier, 1 Black. 
B.5d9. 



that by connecting the bill of parcels with the subsequent letter 
of the defendants, the requisites of the statute were made out. 

So, in an action for not delivering flour according to con- 
tract, it appeared that the plaintiff had sent a written notice 
to the defendant that certain flour delivered by the defendant to 
the plaintiff (" in part performance of the plaintiffs contract 
" with him for 100 sacks or bags of good English seconds 
" flour, at 45s. per sack or bag,") was so bad that the plaintiff 
would not accept it, and that he held the defendant answerable, 
and expected him to fulfil the contract above alluded to in the 
course of a week; and the defendant's attorney's clerk, by 
direction of the defendant returned an answer, stating that de- 
fendant considered he had performed his contract with the 
plaintiff as far as it had gone, and w^as ready to perform the 
remainder; it was held, that as the plaintifTs notice stated the 
terms of the contract, and the defendant's letter clearly referred 
to the same contract, the two papers together made a sufficient 
memorandum within the statute. 

But where in an action for goods sold and delivered, the 
plaintiff offered in evidence an entry of the order for the goods, 
made in an order-book of the plaintifTs rider, which purported 
to be a mere general order of forty sacks of flour at 58s. per 
sack, and this order being insufficient as a memorandum for 
want of signature, the plaintiff endeavoured to satisfy the statute 
by connecting the order with a letter of the defendant, stating, 
that as the plaintiff had not sent the flour, the defendant was 
provided, and that he had expected to receive it in a vceek, it was 
held, that the letter of the defendant appeared to refer to a dif- 
ferent contract, and could not be connected with the order, so as 
to form a memorandum within the statute. 

The place of signature of the memorandum is immaterial. If 
a person draw up an agreement in his own hand-writing, be- 
ginning, " I A. B. agree, 8^c" and leave a place for signature at 
the bottom, but does not sign it, the agreement will be con- 
sidered as sufficiently signed. 

So it seems if a person be in the habit of printing instead of 
writing his name, he may be said to sign by his printed as well 
as by his written name. 

And where the name of the seller was printed in the common 
way on the bill of parcels, and he had written in the bill the 
name of the buyer, that was held to be a recognition of the 
contract and adoption of the printed name, so as to satisfy the 
statute. 

Tlie question whether sales of goods by auction were within 
the seventeenth section was long without a solemn determi- 
nation. In one case Lord Mansfield C. J. and Wilmot J. were 
inclined to the negative, on the* ground that the solemnity 
of that kind of sale, and the number of persons present, pre- 
cluded perjury as to the. fact of sale. But Lord Ellenhorough, 
in Hinde v. Wliitehouse, 7 East, 568., observed, that with all 
deference to these opinions he did not feel any sufficient reason 
for dispensing with the express requisition of the statute apply- 
ing 



(C) Agreements xvithin the Statute c)fFratids. (lyth Section.) 161 

ing to all sales of goods above the value of 10/. without exception, Kenworthy v. 

merely because the quantum of parol evidence in case of an Schofield, 

auction is likely to render the danger of perjury less consider- L/"^"' 
able ; and in a late case the Court of King's Bench {Abbott C. J. 
and Littledale J. being absent,) expressly decided that such 
sales are within the seventeenth section. We have already 
seen (p. 155), that the auctioneer is the agent of both parties, 
and a memorandum made by him of the bargain binds both 
the seller and buyer. 

But the terms of the contract must sufficiently appear on the Hinde v. 

Face of the memorandum, signed by the auctioneer. Therefore, Whitehouse, 

where at a sale by auction of sugars, the auctioneer (having Kenwo'rthvV 

before him the printed catalogue of sale, containing the lots, Schofield, 

marks, and number of hogsheads, and the gross weight of the 2 Barn. & C. 

sugars, and also another paper containing the conditions of sale, pf^"?' i ^"* ^^^ 

which latter he read to the bidders as the terms on which the Barry"i°Camp 

sugars were sold, but the two papers were neither externally 513. 'The 

annexed nor contained any internal reference to each other,) note in writing 

wrote down on the catalogue the name of the highest bidder, "^"^^ ^t'^^^ the 

and the sum bid for each lot, it was holden that the minute on goodsln oi^er 

the catalogue (the catalogue not being incorporated with the to satisfy the 

conditions of sale) was not a sufficient memorandum of a bargain statute. 

under those conditions. ^ ^*'^* ^ %• 

545. 

If the action is brought in the auctioneer's own name for not Farebrother 

accepting goods knocked down at an auction, the statute will not v. Simmons, 

be satisfied by the signature of the auctioneer as agent for the ^ Barn. & A. 

buyer ; for the agent signing must be a third party, and not the ''"'t "■ 'r^y"^'^ 
^u ^ .. .1- X '^ . xu J V. Lmthorne, 

Other party to the contract on the record. 1 \^y & Moo. 

325. Wright V. Dannah, 2 Camp. R. 203.; and see 1 Moo. & Malk. 125. 

In sales made by brokers acting between tlie parties buying Kucker v. 

and selling, the memorandum in the broker's book, and the Cammeycr, 

bought and sold notes transcribed therefrom, and signed by the Hinde v.* 

broker, and delivered to the buyer and seller respectively, are Whitehouse, 

held a sufficient compliance with the statute to render the con- 7 East, 569. 

tract binding on each party. f'^f ^°^^,^^ 

'^ ^ •' lenborough. 

It was laid down by Lord Ellenboroiigh C. J., that the entry j-je„^ ^ 
signed by the broker is alone the binding contract, and that the Neale,2Ca'mp. 
bought and sold notes transcribed from it are only sent to the 357. Gumming 
parties for their information. But in another case, where the T: Roebuck, 
bought and sold notes diffi=red in terms, Gibbs C.J. denied this Thornton \^* 
doctrine, and held that the parties were bound by the notes Kempster, 
delivered by the broker, and if they differed there was no valid 5 Taunt, vsg. 
contract ; and the Courts of Common Pleas and King's Bench ^"^ ,^^^ f^^^^ 
in similar cases decided accordingly. 5 B.lrn &'^C 

436. In Gumming v. Roebuck, and Thornton v. Kempster, it did not appear whether there 
was any entry signed by the broker in his book. Qu. whether such an entry signed will make 
a binding contract where the bought and sold notes differ? It is clear an unsigned entry will 
not. Grant v. Fletcher, supra. 

So, if a material alteration is made in the note by the broker Powell v. Di- 
at the instance of one party, without the assent of the other, )^^"' 1 5 East, 
it annuls the instrument. ''^^' 

Vol. I. M In 



16« AGREEMENTS. 

Dickenson ?. In a late Nisi Prius case, the question arose whether the bought 
Lilwall, and sold notes alone would constitute a contract, without any entry 

1 Surk, 128. Q^ all j„ ti,g broker's book ; but it was not necessary to decide it. 
Goomv. But it has lately been held, that where the broker makes an 

Aflalo, 6 Bam. entry in his book but does not sign it, and sends bought and 
* ^"c *•';, ^'^ sold notes, copied from the book and signed by him, to the parties, 
Sparrow, 2C. ^hey form a sufficient memorandum.|| 

& P. 544. If the broker's clerk sign the book it will not be sufficient; for the broker cannot 
delegate his authority. Henderson v. Barnwall, 1 Young & J. 587 ; see Blore v. Sutton, 
3 Meriv. 237. Though the agent signing the contract has no authority from his principal at 
the time of signing, it will be sufficient if the principal afterwards ratifies the contract. 
Maclean v. Dunn, 4 Bing. 722. 

(D) Of Cases where Equity decrees specific Perform- 
ance of Agreements on the Ground of their 
being in Part performed. 

There are several cases in which it has been holden, that a 
parol agreement in part executed shall be performed in the whole ; 
but as those cases are not exactly stated or well reported, it will 
be sufficient to mention what seems to be the sense of them, and 
what with any justness can be collected from them. If an agree- 
Leek v. Mor- nient be made concerning lands, though not in writing, and the 
rice, 2 Ch. Ca. party by whom it was made receive all or part of the money, 
135. Alsop V. equity will compel a specific performance of the whole agree- 
i^atten, 1 Vern. jjjgjjj-. because this is out of the statute, which designed to defeat 
H. C. 239. such agreements only, no part whereof was carried into exe- 
cution, and set up merely by parol ; for that was the occasion of 
the statute, that persons used to swear verbal agreements upon 
others, and by such false oaths charge the parties in equity to 
perform such agreements, though they had never been made ; and 
therefore the mere parol proof of such agreements concerning 
lands cannot be admitted in a court of equity : but where the 
Bamett v. price is paid, there it doth not stand upon the parol proof of the 
Gomeserra, agreement only, but upon the execution of part of the agreement, 
sled V. Cole- ' ^^^'<^'' is evidence that the agreement was really made ; and diere- 
man,Bunb.65. fore there is the same reason that the plaintiff in equity should 
[{a) In Lacon have the land for his money (a), as it is that he should deliver the 
3 Atk"4°*'Ld S^ods where he hath received the money ; but the doubt in these 
Hardwicke ' ^^ses is, what shall be a proof of the receipt of the money, 
said, that pay- Thus far it seems certain, that if the defendant in his answer 
mcnt had al- confess the receipt of the money for that purpose in the bill, or if 
holden*^a")art ^^ ^^"^ ^^® receipt, and it be proved upon him by writing, as 

Krformance. ^y letter under his hand, or other written evidence, he shall be 
It it seems obliged specifically to perform the whole agreement, because he 
that it is not hath carried part into execution : but if the defendant confess the 
S lands! *St ^^^p'P.^ of the money, but say that he borrowed it from the 
eooile v! plaintiff, and that he had it not in execution of that agreement, 

Mealc, Pr.Ch. there he turns the proof of the agreement upon the plaintiff, 
560. Lord and then the plaintiff must prove the receipt of the money by 
R^2En ^^^ defendant, for the purpose in the bill, by some written 
Ca. Abr. 46. agreement. (6) 

pi 12. Simmons V. Cornelius, 1 Ch. Rep. 128. But sec VoU v. Smith, 5 Ch. Rep. 16. Anon. 
2 Freem. 128.] ^Xn dinan y. Cooke, 1 Scho. & Lef. 22. Lord Redesdale decided that, pay- 
ment 



(D) Part Performance in Equity. 16S 

ment of purchase-money was not a part performance, since the statute having expressly 
declared that it shall be so in case of goods, must have meant to exclude it in case of lands; 
and see O'Herliliy v. Hedges, Ibid. 125. and 4 Ves. 720. 14 Ves.jun. 588. ace. and the cases on 
the subject stated in Sugd. Vend. & P. (6th edit.) 104. ; nor is payment of auction duty on 
a sale a part performance. Buckmaster v Harrop, 13 Ves. 456. and on a parol agreement for 
division of an estate by arbitration, acts done by the arbitrators as surveying, &c. are not a 
part performance. Cooth v. Jackson, 6 Ves. 4I.|1 [Acts done in part performance, must be 
such as could be done with no other view or design than to perform the agreement, and not 
such as are merely introductory or ancillary to it. Ex j)arte Hooper, 19 Ves. 479. 
I Meriv. 7. They must be such, too, as would be a prejudice to the party who has 
done them, if the agreement should afterwards be vacated ; and where no fraud is alleged, 
it seems, that the terms of the agreement must be certainly proved. Gunter v. Halsey, 
Ambl. 586. W^hitbread v. Brockhurst, 1 Bro. Ch. R. 412. The giving of possession is 
to be considered as an act of part performance. Butcher v. Stepeley, 1 Vern. 363. Pyke 
v. Williams, 2 Vern. 455. Lockey v. Lockey, Pr. Ch. 519. Lacon v. Mertins, sAtk. 4. 
Floyd V. Buckland, 2 Freem. 268. Stewart v. Denton, Fonbl. Notes on Eq.Tr, 38.] Wills 
V. Stradling, 3 Ves. jun. 578. Bowes v. Cator, 4 Ves. jun. 71. Gregory v. Mighell, 18 Ves. 
jun. 328. Kine v. Balfe, 2 Ball & B. 343. Morphettv. Jones, 1 Swanst. 172. ;11 [but possession 
wrongfully obtained, or from persons not competent to give it, of however long continuance, 
will not avail. Hole v. White, cited in 1 Bro. Ch. R. 409. Ireland v. Rittlc, 1 Atk. 541.] 
II And it must be a possession delivered in part performance; therefore, the mere continuing in 
possession of a tenant cannot weigh with the court on a bill by the tenant for specific per- 
formance of a parol agreement for a new lease. Wills v. Stradling, sVes. 382. ; and see 
1 Ball & B. 282.; and the mere payment of additional rent by the tenant is an equivocal act, 
unless it appear that the landlord accepted it on the ground of the agreement, ibid. ; and the 
laying out money in rebuilding a party-wall by a tenant does not take an agreement out of 
the statute, since it must be done independently of the agreement, either at the expense of 
the party or his landlord. Frame v. Dawson, 14 Ves. 386,; and see Lindsay v. Lynch, 2 Scho, 
& Lef 1. O'Reilly v. Thompson, 2 Cox. 271. |1 [The giving directions for conveyances, and 
going to view the estate, are not considered as acts of part performance. Clerk v. Wright, 
I Atk. 12. Whaley v. Bagenal, 6 Bro. P. C. 45. Hole v. White, suprh. Nor will desisting 
from a jjurchase of lands in favour of another, upon certain terms, take an agreement in favoui 
of the party desisting, as to part of the lands, out of the statute. Lames v. Bayley, 2 Vern. 
627. ; and see Vin. Abr. tit. Contract, &c. (H) pi. 32. 2 Eq. Ca. Abr. 45. 10. which seem to be 
the same case.] {b) For a parol evidence, as to the receipt of the money, seems to be as 
much excluded by the statute, as parol evidence relating to the agreement ; tamen queere. 
Whether parol evidence may not properly be applied to the act of receiving; though not to 
the act of contracting. See 1 Pow. on Contracts, 306, 507, 308. 

If a man, on a promise of a lease to be made to him, lays out Pr. Ch. 561. 
money on improvements, he shall oblige the lessor afterwards to So lessee 
execute the lease, beinff executed on the part of the lessee, and <'""sed where 

■' o 1 ' nosspsscQ SIX 

the lessor shall not be allowed to take advantage of his own fraud, years. 2 Stra. 
and run away with the improvements made by another ; but if 785. Earl of 
no such expense had been on the lessee's part, a bare promise of Aylesford's 
a lease, though accompanied with possession, would be within ^^.?; ''e^® , 
the statute of frauds. ling^ 3 Ves. 

332. and Frame v. Dawson, 14 Ves. 386. Toole v. Medlicott, 1 Ball & B. 401.|| 

One that could read made an agreement for a lease of twenty- Skin. 159. pie. 
one years ; the lessor himself drew the lease but for one year, and Anon. [That a 
yet read it for twenty-one years, and after the expiration of the ^^^^^ '" * 
year ejected the lessee ; on a bill brought to be relieved upon this ^lent cannot 
matter, which was proved, the court held it to be within the be supplied, 
statute of frauds and perjuries, and dismissed the bill with costs, see Binsted v. 
it being the plaintiff's own folly, being able to read ; seciiSi if he ^^JfiJ^g"' ^^^^ 
had been unlettered. on the ground 

of fraud or mistake it may. Joynes v. Stathani, 3 Atk. 388.] 

If a man purchases lands in another's name, and pays the 2 Vent. 36 1. 
money, it will be a trust for him that paid the money, though g^p'^^ho^e it 

M 2 there 



Ifii AGREEMENTS. 

« said that the there be no deed executed declaring the trust thereof; for the 

proof must be statute of frauds and perjuries extends not to trusts raised by 

very clear that operation of law. 

he paid the ' 

purchase money ; but for this vide head of Evidence, and Trusts, 

Hales V. Van- [Although parol agreements are bound by the statute, and 
herchem, agreements are not to be part parol and part in writing, yet a 

KuSlv Riis- deposit or collateral security for the performance of a written 
sell, Bro. Ch. agreement, is not witliin the purview of the statute.] 

K. 269. 

Abr. Eq. 20. Where a parol agreement was concerning the lending of 

pi. 5. 2Frecm. money on a mortgage, and the conveyance proposed was an ab- 
Skfn^fis solute deed from the mortgagor, and a deed of defeasance from 

5 Atit. 389. the mortgagee, and after the mortgagee had got the deed of con- 
s Wooddes. veyance he refused to execute the defeasance, yet it was decreed 

■429. [Where a gnrainst him on the point of fraud. 

man, m conn- «=• * 

dence of a parol promise, has omitted making that provision for others which he intended, such 

promise has been enforced in equity on the ground of fraud. Davenish v. Baines, Pr. Ch. 3. 

2 Eq. Ca, Abr. 43. S. C. Sellock v. Harris, Vin. Abr. tit. Contract and Agreement (H), p. 31. 

Reech v. Kennigate, Ambl. 67. Harris v. Horwell, Gilb. Eq. R. 1 1.] 



ALIENS. 



(A) Who are Aliens, and this either by the Common 

Law, or by Statute. 

(B) Of Naturalization and Denization, the Difference 

and Effect of them. 

(C) Of the Disadvantages which Aliens lie under by 

our Law. 

[(C 2.) How far the Laws of this Country attach 
upon Aliens.] 

(D) What Actions Aliens may maintain ; and therein 

of the Difference between an Alien Friend 
and one whose King is at enmity with us. 

(E) Of Pleading Alienage. 

(A) Who are Aliens, and this either by the Common 
Law, or by Statute. 

7 Co. 18. a. _^LL those are natural-bom subjects whose parents, at the time 
^setW of their birth, were under the actual obedience of our king^ 

who'were bom ^^ "^^osQ place of birth was within his dominions. 
in Normandy, Gascoigne, &c. while under actual obedience to the kings o^ England, were subject. 

bord. 



I 



(A) ff7io are Aliens by Common Lctw or Statute. 165 

born. 7 Co. 20. b. Vaugh. 270. S. P. And this by the statute 42 Ed. 3. c. 10. is declared to 
have been the common law; but see Bro. Denizen, 14., but those born there now are aliens, 
those places not being in the actual possession of our king. 7 Co. 18. a. 

If one of the king's ambassadors in a foreign country hath 7 Co. is. a. 
issue there by his wife, being an English woman, by the common 
law they are natural-born subjects. 

If the king of England make a new conquest, the persons Dyer, 224. 
there born are his subjects; but if it be taken from him again, Vaugh. 28 1» 
the persons there born afterwards are aliens. 

One born in Ireland, Scotland (a), or ^a/^s, or any of the Vaugh. 279. 
king's plantations, is a natural subject oi England^ because he is ^°'^ '^ ^' n 
born within the ligeance of the king. bT 3^ c 9 %I 

(a) The Antenati, or those born in Scotland before the descent of the English crown to king 
James I. are aliens ; for the uniting the kingdoms by a subsequent descent cannot make them 
subjects of that crown to which they were born aliens ; but the post?iati, or such as were born 
after, are not aliens ; for being born within the allegiance, and under the protection of the king 
o^ England, they are his natural subjects, and not aliens. 7 Co. 1 — 28. Calvin's case adjudged, 
with the reasons at large. 

If aliens come as enemies into the realm, and possess themselves 7 Co. is. a. 
of a town or fort, and one of them has issue born here, this issue 
is an alien ; for it is not calum or soliim that makes a subject, but 
the being born within the allegiance, and under the protection of 
the king. 

If the king o^ England enter with his army in a hostile man- Vaugh. 231, 
ner the territories of another prince, and any be born within the 
places possessed by the king's army, and consequently within his 
protection, such person is a subject born to the king of England^ 
if from parents subjects, and not hostile. 

Those born on the English seas are not aliens. Molloy, b. 5. 

c. 2. § 9. 

By a statute 25 Ed. 3. de natis idtra mare, it is declared, " that 25 E. 5. Bt. 3. 
*' the king's children, wherever born, ought to inherit: and that 
*' all children in heritors, which from henceforth shall be born 
*' without the ligeance of the king, wiiose fathers and mothers, 
** at the time of their birth be and shall be of the faith and allegi- 
** ance of the king of England, shall have and enjoy the same 
** benefits and advantages to have and bear the inheritance within 
*' the same ligeance as other inheritors aforesaid, in time to 
*' come, so always that the mothers of such children do pass the 
" sea by the licence and wills of their husbands." 

If an E?igltsh merchant goes beyond sea, and takes an alien Qr^ q^^ gQl 
wife, the issue shall inherit him ; so it is if an English woman ^02. Bacon v. 
goes beyond sea and takes an alien husband, the children there Bacon, ad- 
born shall inherit her; for thoujih the statute be in the coniunc- J"^sed. Lit. 

• \« ^« .Iv 22 24 S I 

tive (b), yet it hath been construed in the disjunctive to hinder sjj^ 193. s.c' 
this disability ; and the word and taken instead of or, as some- cited. Vent, 
times it is, it being not reasonable that the child shoukl not ^.-7. S. C. 

inherit the parent that is of ability, for the defect of the other *^'^^^,' f'"' '' 
♦k„«. : ^ 4. was holden, 

t^^t^^no;- . that if baron 

and feme English go beyond sea witliout licence, or stay there beyond the time limited by the 
licence, and have issue, such issue is an alien, and not inheritable. Cro. Eliz. 5. Hyde v. 
Hill ; tnmcn quarc, ct vide Lit. R. 27., and Bro. tit. Denizen, G.; and see infra, [{b) But qu. 
Whether the cases referred to warrant this construction; and sec the case of Doe ex dem. 

M 3 Count 



166 



ALIENS. 



of tl>c '25 E. 
Dyer, 2124 in 



Count Durouie v. Jones, where it was determined that the son of an alien father, of an En- 
glish mother bom out of the king's dominions, cannot inherit an estate in right of hia mother. 
ITic juJement of the court went upon the statutes of 4G.2. c. 21. and 15 G. 5. c. 21., which 
confine the privilege to the paternal heirs, and were conceived to be parliamentary expositions 
4 Term R. 300.] 

Husband and wife dwelling in Calais, when it was taken by the 
Fretichy fled into Flariders, where the wife was delivered of a 
son; the issue adjudged a denizen, because his parents were 
born in Calais, then reckoned part of the king's dominions, and 
because he himself was begotten there, though to avoid the rage 
of enemies born in another prince's territories. 

By the 7 Ann. c. 5. § 3. it is enacted, " that the children of 
" all natural-born subjects, born out of the ligeance of her Ma- 
" jesty, her heirs and successors, shall be deemed, judged and 
" taken to be natural-born subjects of this kingdom, to all intents, 
" constructions, and purposes whatsoever. 

By the 4 G. 2. c. 21. the above clause is confirmed (a) 
with the following proviso, " that it shall not extend to any 
" children, so as to make them natural-born subjects of Great 
" Britain, whose fathers, at the time of the birth of such chil- 
" dren respectively, were or; shall be attainted of high treason, by 
" judgment, outlawry, or otherwise, either in this kingdom or in 
" Ireland, or whose fathers at the time of the birth of such chil- 
" dren respectively, by any law or law s made in this kingdom, 
" or in Ireland, were or shall be liable to the penalties of high 
" treason or felony, in case of their returning into this kingdom 
" or into Ireland, without the licence of his majesty, his heirs 
" or successors, or any of his majesty's royal predecessors, or 
" whose fathers, at the time of the birth of such children re- 
" spectively, were or shall be in the actual service of any foreign 
" prince or state, then in enmity with the crown of England ; 
" but that all such children are, were, and shall be and remain 
" in the same state, plight, and condition, to all intents, con- 
" structions, and purposes whatsoever, as they would have been 
" in if the said act of the seventh year of her said late majesty's 
" reign, or this present act, had never been made ; but out of 
" this proviso are excepted (other than the children of such per- 
" sons who went out of Ireland in pursuance of the articles 
" oi Limerick) the child of every such person before described, 
" who, at any time between the 16th day of November 1708, 
" and the 25th day oi March 1731, hath come into Great Bri- 
" tain or Ireland, &c., and hath continued to reside in any of 
" those places for the space of two years, and during such re- 
" sidence hath professed the protestant religion ; also every child 
" whose father came into Great Britain or Ireland, &c. and pro- 
" fessed the protestant religion, and died there between the 
" times aforesaid ; also every child whose father continued in 
the actual possession or receipt of the rents and profits of any 
lands, S)C. for the space of one whole year, at any time be- 
tween the aforesaid times, or hath bmajde, and for valuable 
" consideration, sold, conveyed, or settled any lands. SfC. in 

« Great 



7 Ann. c. 5. 



4G.2. C.23. 
[(a) The con- 
firmatory 
clause here 
alhuied to, 
differs from 
the statute of 
Ann. in this 
respect, that it 
restricts tiie 
privilege to 
the paternal 
line. The 
words are, 
" That all 
children born 
out of the 
ligeance, &c. 
whose/<////tT 
shall be natu- 
ral-bom sub- 
jects, &c."] 
Ijlf the 
lather has lost 
his character 
of natural- 
born subject 
before the 
birth of the 
child, the child 
is an alien. 
Doe dem. 
Thomas v. 
Acklam , 
2 Bara. & C. 
779.; and see 
pottf 168.|| 



(A) Pfho are Aliens by Common La'w or SUttute, Id? 

'* Great Britain or Ireland ,• and any person claiming title there- 
*' to under such sale, ^c. who hath been or continued in the 
** actual possession or receipt of the rents and profits thereof, 
*' for the space of six months, between the times aforesaid, 
** tlien, Sj-c. 

[By the 13 G. 3. c. 21. the provisions of the above acts are isQ.s. c.2i. 
extended to grand-children, still however adhering to the pater- 
nal line, with provisoes that nothing in that act " shall be con- 
** strued to affect any of the limitations or restrictions of the act 
" of 4 G. 2. c. 21. or to repeal or alter the act of 5 G. 1. c. 27. 
*' hereafter mentioned ; or to repeal or alter any law or custom 
** concerning aliens' duties, customs, and impositions, or to cause 
" any privilege, exemption, or abatement relating thereto, in 
*' favour of any person naturalized by virtue of that act, unless 
*' such person shall come into this realm, and there inhabit and 
** reside, and shall take and subscribe the oaths, and make, re- 
*' peat, and subscribe the declaration appointed by the act of 
** 1 G. 1. c. 13., entitled an act for the further security, 4"^. at 
** the places and times, and in the manner directed by that act, 
** and also receive the sacrament of the Lord's Supper according 
" to the usage of the church of England, or in some protestant 
*' or reformed congregation within the kingdom of Great Britain, 
" within three months before his taking the oaths in the said 
** act mentioned, and shall, at the time and place of taking such 
** oaths, and of making, repeating, and subscribing the said de- 
** claration, produce a certificate signed by the person administer- 
** ing the said sacrament, and signed by two credible witnesses, 
** whereof an entry shall be made of record in the court and 
** courts respectively wherein such oaths shall have been made 
*' and subscribed, without any fee or reward. And it is further 
*' provided, that no person shall be by this act enabled to defeat 
** any estate, right, or interest, which on the last day of that ses- 
** sion should be had or vested in any other person, or to claim or 
" demand any estate or interest which shall hereafter accrue, so 
** as such claim or demand shall be made within five years after 
** the same shall accrue." 

By Stat. 14? & 15 H. 8. c. 4. it is enacted, that if an English 14 & 15H. 8. 
subject go beyond the seas, and there become a sworn subject to c* *. 
any foreign prince or state, he shall, during his residence abroad, 
pay such impositions as aliens do : with a proviso, that if he re- 
turns, and lives here, he shall be restored to his liberties and 
privileges.] 

By the 5 G. 1. c. 27. it is enacted, " that if any manu- sG. i. c.27. 
** facturer or artificer of or in wool, iron, steel, brass, or any 
*' other metal, clockmaker, watchmaker, or any other artificer 
** or manufacturer of Great Britain, shall at any time after the 
*' first day of May 1719, go into any country out of his ma- 
** jesty's dominions, there to use or exercise, or teach any of the 
*' said trades or manufactures to foreigners: or in case any of 
" his majesty's subjects now being, or who hereafter shall be in 

M 4 «* any 



168 



ALIENS. 



Fost.Cr.L. 59. 
Dyer, 29a. b. 
500. b. 



1 Wooddcs. 
382. 



Doe dem. 
Thomas v. 
Acklam, 
2 Barn. & C. 
779. 



" any such foreign country out of his majesty's dominions a> 
" aforesaid, and there using or exercising any of the said trades- 
" or manufactories herein-before mentioned, shall not return 
" hito this realm within six months next after warning shall be 
" given to him by the ambassador, envoy, resident, minister, ok 
" consul of the crown of Great Britain, in the country in which 
" such artificer shall be, or by any person authorized by such 
" ambassador, ^c. or by one of his majesty's secretaries of state 
" for the time being, and from thenceforth continually inhabit 
" and dwell within this realm ; then and in such case every 
** such person shall be deemed an alien." 

[It should here be observed, that the duty of allegiance arising 
from birth is perpetual and unalienable, and that it is not in the 
power of any private subject to shake off his allegiance, and 



transfer it to a foreign prince ; nor is it in the power of any 
foreign prince by naturalizing or employing a subject of Great 
Britain, to dissolve the bond of allegiance between that subject 
and the crown. But when, by treaty, especially if ratified by 
act of parliament, our sovereign cedes any island or region to 
another state, the inhabitants of such ceded territory, though 
born under the allegiance of our king, or being under his pro- 
tection whilst it appertained to his crown and authority, becoma 
effectually aliens, or liable to the disabilities of alienage, in re- 
spect of their future concerns with this country. And similar to 
this seems the condition of the revolted Americans, since the 
recognition of their independent commonwealths.] 

II This question has now been decided. The case was an action 
of ejectment, to recover premises at Kingsto7i-tij)on-Hnll, which 
came on to be tried before Abbott C. J. at the York summer 
assizes 1822. The jury found a special verdict, stating that 
Elizabeth Harrison died seised of the premises in 1813, without 
a will, and never having been married, and that Frances Mai-y 
(one of the lessors of the plaintiff), the wife of Philip Thomas, 
was her next heir, if she was capable of inheriting. Peter Har- 
rison, the uncle of Eliz. Harrison, and the grandfather o{ Frances 
Mary Thomas, being a natural-born British subject, went to the 
British colonies in North America, and died there in 1775, leaving 
several children who all died without issue in the life of Elizabeth 
Harrison, except one daughter, Elizabeth Harrison, who in 1781 
married at Rfiode Island, one of the British Colonies, James 
Eudlow, a native subject, born in the American Colonies. Eliz. 
Ludlcnx) died in America in 1790, leaving the lessor Frances 
Mary her only child, she having been born at Rhode Island, in 
the United States, on the 4th Febniary 1784, after the recognition 
of the independence of the United States by the British crown, 
which recognition took place on the 3d September- 1783. James 
Ludlffw and Elizabeth his wife continued to reside in America 
after the recognition of independence. For the plaintiff it 
was contended, that the parents of Frances Mary Thomas, 
having been natural-born subjects of the British crown at the 

time 



(B) Of Naturdlization and Denization. 169 

time of the separation of the colonies, did not cease to be so 
by that event, and that the lessor Frances Maty Thomas was 
therefore the child of a natural-born subject, and as such entitled 
to be considered a natural-born subject of the crown of Great 
Britain within the meaning of the statutes 25 Edw. S. stat. 2 
7 Ann. c. 5. ^S.^ Geo. 2. c. 21. But the court held, that under ,. ^^ . , 
the words of this last statute, a child was not to be considered a Lessee v. 
natural-born subject, unless the father were at the time of the Rochester, 
birth a subject; and that as Mr. Ludlow had lost the character 7 Wheaton's 
of a subject of Great Britaiti at the separation of the colonies from CaseTin^he 
the mother country, his daughter born after that event was an Supreme 
alien, and incapable of inheriting, and judgment was accordingly Court of the 
given for the defendant. (In a casein the supreme court of the United States. 
United States, it had previously been determined that natives of 
Great Britain were aliens, and incapable of inheriting lands in 
the United States, {a) 

But, in a subsequent case, where the parents were natural-born Auchmuty v. 
British subjects residing in America before the recognition of the Mulcaster, 
independence of that country, and on that event adhered to the t^f^' 
British government, (by embarking with the British troops when 
they evacuated New York, and residing in England for two years, 
and by the father going to America under an appointment from 
the British government), it was held, that their children born 
after the recognition were capable of inheriting lands in this 
country. Bayley J. said, — There is a very plain distinction be- 
tween this case and that of Doe v. Acklam. In that case it appeared 
that the parent, through whom the claim was made, put off his 
allegiance at the time of the treaty, which enabled him to do so; 
here the parent took no such step at that time, and the law did 
not enable him to do so at any future time. || 

(B) Of Naturalization and Denization, the Difference 
and Effect of them. 

A LIEN born may become a subject of England two ways, by i Inst, 8. a. 

denization and by naturahzation : denization is by the king's ^^^' ^- Pal>". 

letters patent ; it receives him into the society as a new man, and "^'i ^?"'''^y 
11-11 1 1 • / \ 1 1 1 a"" Uixon. 

makes him capable to purchase and to transmit [a) lands by Cro. Jac. 539. 

descent, but not inheritable to any other relation ; for though the (a) His 

king by his charter may admit him into the society, yet he can- children born 

not alter the law, which denied him to inherit any relations : but jgj^[ ^^^ 

if he be naturalized by act of parliament, then he in all things shall inherit 

inherits like a natural-born subject, because in an act of parlia- but not those 

ment every man's consent in included. ^°^" before; 

•^ . • but all the 

children of one naturalized shall inherit, as well those born before as after, Co. Lit. 8. 
Style's R. 139. 

A man may be made a denizen in tail, for life, years, or upon 2 Jones, 12. 
condition : so the king may make a particular denization, as if ^™-'^^^- ^3^- 
he grants to an alien qtiod in qidbiisdam curiis suis Anglitv audi- '^^ ^'t. 129. a. 

atur 



170 ALIENS. 

ulur ut Anglus, et quod non repeUatur per illam excepiionem qttod 
est alienigena. 
Co. Lit. 1 89. 0. But one cannot be naturalized, either with limitation for years, 
2 Roll. R. 95. life, or in tail, or upon condition; for it is against the absolute- 
ness, purity, and indelibility of natural allegiance. 
Carter 185 ^^ * "^^" ^^ naturalized in Ireland by the parliament there, this 

aKcb.eoi. is no naturalization as to England, for the parliament of /r^/an^ 
2 Jonc«, 12. hath no direct or consequential power of binding England; and 

2 Vent. 2. naturalization is but a fiction, which can only bind those that 
But a natu- . , .. 

ralization in consent to it. .,,.,, u « • u 

England makes a man a natural-born subject of Ireland, Vaugn.291. hie is here made a 
natural subject of the Britith dominions. [But Q,u. since the statute of 25 G. 3. c. 28.] 
Roll. Abr. 195. If an alien be made a denizen, and the letters of denization 
Manning's Yiaye a proviso (usual in such charters (a), that the denizen shall 
^"c r^Txhis ^^ ^^ Mege homage, and that he shall be obedient, and observe 
proviso is the laws of this realm ; this proviso is not any condition, for 
required by though he never doth his liege homage, nor is obedient to all 
Stat. 32 H. 8. j.j^g j^^g of this realm, yet this will not make the denization voidj 
C.16. $ .J £^j, \^\iQ doth not observe the laws, he shall forfeit the penalties 

appointed by them. 
vJac.i. 0.2. By the 7 Jac. 1. cap. 2. it is enacted, " That no person or 
IIThis provision " persons of what quality, condition, or place soever, being of 
was dispensed « the age of eighteen years or above, shall be naturalized or 
T' h* *th " '''^stored in blood, unless the said person or persons have re- 
famous Jew " ceived the sacrament of the Lord's Supper within one month 
Bill, 26 G. 2. " before any bill exhibited for the purpose ; and also shall take 
c. 26. ; but this <t ^he oath of supremacy and the oath of allegiance in the parlia- 
statute wasre- « pient house, before his or her bill be twice read ; which oath 
27 G. 2. c. i.|| " the lord chancellor, or lord keeper, and the speaker of the 

" house of commons, have authority to administer." 
Molloy, bk. 3. A denizen is not capable of nobility, or to sit in parliament ; 
c 3. § 14. for that to have a power of making laws it is necessary he should 
be totally received into the society, which he cannot be without 
the consent of parliament. 
[Co. Litt. 278. [If ^^ alien be a disseisor, and obtain letters of denization, and 
b.] then the disseisee release unto him, the king shall not have the 

land ; for the release hath altered the estate, and it is, as it were 
a new purchase ; othei'wise it is, if the alien had been feoflfee of 
the disseisee.] 
Fish V. Klein, ||But where an alien trustee joins in a conveyance, and after- 
2 Meriv. 431 . ; wards obtains an act of naturalization, by which it is declared 
52*^2 Ves 286* ^^ ^^ ^^ ^^"^ thenceforth naturalized, and shall be and is 
538. 5 Bro. enabled to " ask, take, have, retain, and enjoy all lands which 
P.C. 91. " he may or shall have by purchase or gift of any person what- 

" soever," and " shall be, to all intents and purposes, as if he 
" had been a natural-born subject," this act cannot retrospec- 
tively confirm the title of the purchaser under the conveyance 
previous to the act.|| 
1S& 15 W. 3. By the 12 & 13 W. 3. cap. 2. it is enacted, " that no person 
" born out of these kingdoms, (although he be naturalized or 
" made a denizen,) except such as are born o^ English parents, 

« shall 



(B) Of Naturalization and Denization, 



171 



[{a) A natu- 
ralized person 
is not eligible 



" shall be capable to be of the privy council, or a member of 
" either house of parliament, or to enjoy any office or place of 
" trust, either civil or military ; or to have any grant of lands, 
" tenements, or hereditaments from the crown to himself, or to 
" any other or others in trust for him." 

But this statute by the 1 Geo. 1. stat. 2. cap. 4. is explained iG. i.stat. 2. 
so as not to extend to disable or incapacitate any person, who c.4. 
at or before his majesty's accession to the crown was natural- 
ized, to be of the privy council, or a member of either house 
of parliament, 8fC. ; and by this statute is is enacted, " that no 
" person shall hereafter be naturalized, unless in the bill exhi- 
" bited for that purpose there be a clause, or particular words 
" inserted, to declare that such person shall not thereby be en- 
" abled to be of the privy council, or a member of either house 
" of parliament ; or to take any office or place of trust {a) either 
" civil or military, or to have any grant of lands, tenements, or 
" hereditaments from the crown, to himself, or any other in trust to the office 
*' for him; and that no bill of naturalization shall hereafter be of constable. 
" received in either house of parliament, unless such clause or m^. when any 
" words be first inserted or contained therein. (6)" foreigner, dis- 

tinguished by eminent rank or services, is naturalized, it is usual first to pass an act for tiie 
repeal of these statutes in his favour, and then to pass an act of naturalization without any 
exception. 4 Ann. c. 1. 7 G. 2. c. 5. 

[And by 14 G. 3. c. 84. it is enacted, " that no naturaliz- 
" ation bill shall in future be received, unless there shall be a 
" clause in it, declaring, that the person to be naturalized shall 
" not thereby obtain, or become entitled to claim within any effect in natu- 
" foreign country, any of the immunities or indulgences in trade, ralization bills 
" which are or may be enjoyed or claimed therein by natural- ^^'03*^ ^"^ 
" born British subjects, by virtue of any treaty or otherwise, acT^'llie nrac- 
" unless such person shall have inhabited or resided within Great tice had ob- 
" Britain^ or the dominions thereto belonging, for the space of tained ever 
" seven years subsequent to the first day of the session of parlia- '^'"'^^ '^^ J'^^"^ 
" ment in which the said bill of naturalization shall have passed; sequence^o"a 
" and shall not have been absent out of the same for a longer petition to 
*' space than two months at any one time during the said seven parlianient at 
« years " {c\ ^^^ tvm^ from 

\ , the City of 

London, complaining of the great abuse of the privileges of naturalization in this respect. 
Debrett's Deb. 5 vol. 124.] 

By statute 13 G. 2. c. 3. every foreign seaman, who in time of is G.2. c. 3. 
war serves two years on board an English ship by virtue of the 
king's proclamation, is ipso facto naturalized under the like 
restrictions as in 12 W. 3. c. 2.; and by statutes 13 G. 2. c. 7. 12W.3. c. 2. 
20 G. 2. c. 44. 22 G. 2. c. 45. 2 G. 3. c. 25. and 13 G. 3. c. 25. is G. 2. c. 7. 
all foreign Protestants and Jews, upon their residing seven years ^oG 2 '^4^' 
in any of the American colonies, without being absent above two 2 G. s. c. 25.' 
months at a time, and all foreign protestants serving two years 13 G. 3. c.25. 
in a military capacity there, or being three years employed in 
the whale-fishery, without afterwards absenting themselves from 
the king's dominions for more than one year, and none of them 
falling within the incapacities declared by statute 4 G. 2. c. 21. 

shall 



14 G. 3. c. 84. 
[(c) It was 
usual to insert 
a clause to this 



igCt ALIENS. 

shall be (upon taking the oaths of allegiance and supremacy, or, 
in some cases, making an affirmation to the same effect,) natu- 
ralized to all intents and purposes, as if they had been born in 
this kingdom ; except as to sitting in parliament or being of the 
privy council, and holding offices or grants of land, S^c. from the 
crown within the kingdoms of Great Britain and Ireland. By 
statute 26 G. 3. c. 50. § 24.. 27, 28. and 28 G. 3. c. 20. § 15. 
every foreigner who has established himself and family in Great 
Brttaiji, and carried on the southern whale-fishery, and im- 
ported the produce thereof for the space of five years succes- 
sively, is declared to be entided to all the privileges of a 
natural-born subject.] 

(C) Of the Disadvantages which Aliens lie under. 

Vaugh. 227. A N alien cannot purchase (a) or inherit any lands [in this 
291. 7 Co. 16. country, because an interest in the soil requireth a perma- 

Dyer, 2. pi. 8. ^^^^^ allegiance, which would probably be inconsistent with that 
£g1it that ^hich he oweth to his own natural liege lord.] 
the laws aipiinst aliens were introduced in the time of Henry the Second when a law was made 
at the [)arlianient of Wallingford for the expulsion of strangers, in order to draw away the 
Flemings and Ficards who were brought into the kingdom by the wars of King Stephen. 
Daniel, 67. Others have thought that the original of this law was far more ancient ; and 
that it is an original branch of the feudal law ; for, by that law, no man can purchase any 
lands without being obliged to fealty to the laws of whom they are holden ; so that an alien, 
who owed a previous faith to another prince, could not take an oath of fidelity in another 
sovereign's dominions, Spelm. tit. Ligeantia, 568. Custumer, c. 43. Some restraints have 
been laid upon aliens by the laws of almost all countries. Among the Romans, the civet 
Romani only were at first esteemed freemen ; afterwards, when their territories increased, all 
the Italians were made free, under the name of Latins, only they had not the privilege of 
wearing gold rings, which was altered by Justinian ; at last, all born within the pale of the 
empire were citizens, in orbe Romano qui sunt, ex conslitutione Imperatoris Antonini civet 
Romani effecti sunt. Vicinius, 27. Dig. Lib. 1. tit. 5. fo. 16. Dio Cassius relates the occasion 
of this constitution being made, in Excerpt. Vales, p. 751. The Orbis Romanus of Spanheim 
is a complete history of the progressive admission of Latium, Italy, and the provinces, to the 
freedom of Rome. Lord C. J. Hale saith, that the law of England rather contracts than 
extends the disability of aliens, because the shutting out of aliens tends to the loss of people, 
who, when laboriously employed, are the true riches of any country. Ventr. 427, 2 Roll. 
Rep. 94. [a) He may purchase, but cannot hold. Co. Lit. 2. b. Therefore, if tenant in tail, 
he may suffer a recovery, and dock the remainders. Goldsb. 102. 4 Leon, 82. Bro. tit. 
Denizen and Alien, 17. On a covenant to stand seised, an use will arise for an alien. Godb. 
275. But by act of law, he cannot take, as by descent, courtesy, dower, guartlianship. Ventr. 
417. Molloy, 464. 7 Co. 25. By a special act of parliament, not printed. Rot. Pari. 8 H. 5. 
n. 1 5. women aliens marrying Englishmen, with the king's licence, were allowed in future to 
demand dower. But this act not extending to those married before, therefore, in Rot. Pari. 
9 H. 5 n. 9. there is a special act of parliament to enable Beatrice Countess oi Arundel, born 
in Portugal, to demand her dower. Hal. MSS. Hargr. Co. Litt. 31. b. n. 9. See ace. Roll. 
Abr. 675. The disability of an alien to hold lands for his own benefit is not to be considered 
as a penalty or forfeiture ; but ariseth merely from the policy of the law ; and therefore, it 
hath been adjudged in equity, that he cannot demur to a discovery of any circumstances 
necessary to establish the fact of alienage. Attorney-General v. Duplessis, Parker, 144. 5 Bro. 

Sid. 193. 198. And as an alien cannot inherit himself, so he cannot be 
429. Colling- "iherited ; the grandfather born in England^ the son an alien, 
wood v. Pace, the grandson born in England^ the grandson shall not inherit 
Hard. 224. Co. the grandfather, because he must then represent the father, 
Lite 8. cont. who cannot be represented ; but if the father be an alien, and 

two 



(C) Of the Disadvantages which Aliens lie under, 17S 

two brothers born in England, they may hiherit each other, 
because the descent is immediate, and they do not take by 
representation of the father. 

If the eldest son be an alien, the younger brother born in Vent. 417. 
England shall inherit the father ; otherwise it were if the eldest ' .^"*'- ^- ?L, 
son were attainted, because the eldest son and all his descend- ^Ixher being a 
ants are before the younger brother, and the younger brother natural-born 
cannot inherit before that line is extinct; and it is a foreign pre- subject, the son 
sumption, to suppose that any of that line should come over and "^^^^^ be so 
have children in England; but the person attainted is supposed of the^statutes 
to have all his children residing in the kingdom under the king's of 7 Ann. c. 5. 
allegiance, therefore there is a line continuing before that of and 4 G. 2. 
the younger brother. ^^f^^'^ "'""''• 

For the same reason, if an alien hath four sons, the two eldest 
aliens, and the two younger naturalized, and one of the younger 
sons purchaseth lands and dies, the eldest brother having issue 
born within the realm, the younger brother, and not the issue of 
the eldest, shall inherit. 

If an alien hath a son alien, and afterwards is made a denizen, Cro. Jac. 539. 

and hath a second son, the second son shall inherit, thouffh the ^"'^ ^° ^\ ^ ^"*^' 
M ^ u ^^ ' o 8. a. to be un- 

eldest son be alive. derstood. 

If an alien hath issue two sons, A. born beyond sea, and B. Palm. 5. Cro. 
born in England, and A. is naturalized, he shall inherit B. l^*^' •539. God- 

And now by the 11 & 12 W. 3. c, 6. it is enacted, " that all 11 & 12 W.s. 
" and every person or persons, being the king's natural-born ^^ ^• 
" subject or subjects, within any of the king's realms or domi- ^j^^®, ^^^^^ 
" nions, shall and may hereafter lawfully inherit and be inherit- scendinfr to an 
*' able, as heir or heirs to any honours, manors, lands, tenements, alien could 
" or hereditaments, and make their pedigrees and titles by "°*^ ^]^ taken 
" descent from any of their ancestors, lineal or collateral, al- 1 ^"J'' ^?^» 
" though the father and mother, or fathers or mothers, or other could not ^ 
" ancestor of such person or persons, by, from, through, or oblige his per- 
*' under whom he, she, or they shall or may make or derive their ^?" and ser- 
" title or pedigree, were or was, or is or are, or shall be born V^^^- ^"^ «* 
" out of the king's allegiance, and out of his majesty's realms that subjects ' 
" and dominions, as freely, fully, and effectually to all intents within the al- 
" and purposes, as if such father or mother, or fathers or legiance, who 
" mothers, or other ancestor or ancestors, by, from, through, or him^rif "kf^ 
" under whom he, she or they shall or may make or derive disabled from^ 
" their title or pedigree, had been naturalized, or natural-born conveying de- 
** subjects." scent, by the 

operation of a 
reason of which the very reverse was true as to themselves, therefore this statute was made. Law 
of Forfeit. 84.] See 25 G.2. c. 39. which obviates some doubts that may arise therein, and con- 
fines the benefit of this statute to such heirs as shall be living, and capable of taking the estate 
at the death of the person last dying seised. But in case the descent shall be cast upon a 
daughter, and there shall be afterwards a son born, or one or more daughter or daughters, the 
descent so cast upon the daughter shall, in the one case, be entirely divested in favour of 
the son, and the after-born daughter or daughters shall, in the other case, inherit in copar- 
cenery with her. 

If an alien purchases land, the king shall have it upon office Co. Litt. 2. b. 

found ; for since the freehold is in the alien, and he is tenant to "j?'f'r^' ^^**^ 

the lord of whom the lands are holden, it cannot be devested pi.'oi. "' 

of 



rf^ 



ALIENS. 



pi. 61. Dyer, 
283. pi. 31. 
Note; There 
are two sorts 
of offices, an 
office of enti- 
tling, which is 



o? Mm but by some notorious act, by which it may appear tlmt 
the freehold is in another ; but if an alien purchases lands and 
dies, then the freehold is in the king without office found, be- 
cause no man can take it as heir to the alien, therefore the free- 
hold is cast upon the king; but if an alien purchases, and after- 
wards is made a denizen, and then hath issue, and dies, the issue 
shall inherit till office found, because there is a person in being 
to take as heir to the denizen, upon whom the law casts the 
freehold, which is not to be devested out of him without the 
solemnity of an office. 
Goldsb. 29. If an alien and a subject purchase lands to them and their 

pi. 4. Leo. 47. i^eii-s^ tJie survivorship shall take place till office found, but the 
office found entitles the king, and severs the joint-tenancy ; for 
the freehold is in the alien by the solemnity of livery, till it is 
devested out of him by solemn office found ; and every person, 
who is resident in the kingdom, is supposed a natural-born 
subject, till the contrary be found by office, 
under the great seal ; and an office of instruction, which is under the seal of the Exchequer ; 
the office of entitling is an inquest, which gives the king a title, as here in the case of 
aliens, &c. 5 Co. 52. Page's case. See Gilb. Hist. View of the Exchequer, 132, 1.53, 134. 
Gilb. Hist. Chan. 12. [The king has a title before office found; the office vests the possession. 
5 Co. 52. Hob. 153. Parker, 152. Choses in action belonging to an alien enemy are forfeit- 
able to the crown, but there must be an inquisition to entitle the king ; and if a peace be made 
before the inquisition is taken, the cause of forfeiture is discharged. Attorney-General v. 
Weeden and Shales, Parker, 267.] 

Roll. Abr. 194. If an alien purchases a copyhold in fee in the name of J. S. 
j\^l\\]'^' ini trust for him and his heirs, though it be found that the copy- 
14. Stile 20 ' ^®1^ ^^^ ^" ^""^^^ ^°^ ^^^ alien, and that J. S. had the legal estate, 
yet the king must sue in Chancery to have the trust executed 
for his benefit. 

II An alien cannot hold property as a trustee, or make a good 
conveyance of it to a purchaser. Where an alien was a joint 
devisee in trust, and joined in a conveyance of the trust estate to 
a purchaser, and after the conveyance, in order to confirm the 
title, procured an act of naturalization, whereby he was author- 
ized, "to take, retain, have, keep, and enjoy all manors, lands," Sj-c. 
the Vice-Chancellor held, that the estate being out of the alien at 
the time of the conveyance, and the act being silent as to it, the 
vendee was not in a better situation than the alien himself. — 
N. B. The vendors had endeavoured to have retrospective 
words introduced into the naturalization-act, but a departure 
from the common form was found impracticable. || 

[An alien infant, under the age of twenty-one years, cannot be 
a merchant trader within this realm, nor can he enter any goods 
in his own name at the custom-house.] 

An alien cannot purchase a lease for years of lands, but he 

_ _ ^^ may, if he be a merchant (a), take a lease of a house for his 

to rent houses, habitation, for years only, and this is for the encouragement 
and to buy and of commerce; for if an alien trade he must have an abode 
c^mmoditS" among "s; but if he depart the kingdom, or die, it goes to 
themselves, ^^^ ^^"S' "^^ t® ^is executors or administrators {b) ; because it 
without any in. was Only a personal privilege annexed to the alien, as a mer- 
chant, 



21. 41. 76. 
Parker, 156. 

Fish V. Klein 
2 Meriv. R. 
431. 



fit. 13 & 14 
Car. 2. c.ll. 
$ 10. 

[Merchant 
strangers were 
first permitted 



(C) Of the Disadvantages which Aliens lie under, IJ5 

chant, for the encouragement of commerce, and consequently terruptionfiom 
must expire with him, without going to his executors or ad- *^^ citizens, 

ministrators. fj^l' ^^^ f ''«• 

1284 ; for be- 
fore that time they hired lodgings, and their landlords were the brokers, who sold all 
their goods and merchandizes for them, Rapin, 361. note 9. Fab. Chron. This indulgence, 
together with the loss of their brokerage, seems to have provoked the resentment of the 
citiaens : for, in the Parliament Roli, in the 18th year of Edward the First, {viz. A.D. 1289), 
we find the following petition, and answer : " Gives London, pctunt quod alienigena; viercatoj'cs 
" expellantur a civitate, quia ditentur ad dcpaupcrationem civiuvi" See. — Responsio : " Sex 
'* intcndit quod mercatores extranei sunt idonei ct utiles magnatibus. Sec. ct non habet concilium 
" eos expellendi" 2 Inst. 741.] (a) Poph. 36. Co. Litt. 2. b. and the notes in 14th edit. 
Roll. Abr. 194. must be a merchant, {h) Not if he goes beyond sea, and leaves servants in his 
house during his absence. Dyer, 2. b. 

But by the 32 H. 8. c. 16. paragr. 13. it is enacted, " that 32 H. s. c. le. 
" all leases of any dwelling-house or shop within this realm, or par. 13. [Sir W. 
*' any of the king's dominions, made to any stranger artificer, or /, ri ]°"p 
" handicraftsman born out of the king's obeisance, not being ^^2.) says th'at 
" denizen, shall be void, and of no effect ; and the person so the statutes, 
" taking such lease forfeits lOOZ. and the person letting 100/. prohibiting 

" more ; one moiety to the king, and the other to him that will f ^^" artificers 
et c ai >j '^ work tor 

" sue for the same. themselves, are 

generally held to be virtually repealed by the stat. 5 Eliz. c. 7.; but there doth not appear to be 
any other authority to that,effect. 1 Wooddes. 575. note.] liThe statute 32 H. 8. c. 16. § 13. 
is unrepealed, and surely requires the revision of the legislature. Though the statute avoids 
leases, &c. made to stranger artificers, yet if such artificer occupies a dwelling-house or shop 
under an agreement which does not amount to a lease, as if he be tenant from year to year, 
or for one year or a shorter time, an action for use and occupation lies against him. 2 Show. 
135. And if an alien-amy occupy a dwelling-house of the yearly value of 10/. as such tenant, 
and reside in it forty days, he gains a settlement. The King v. Eastbourne, 4 East, 105. j and 
see Hargr. & But. Co. Litt. 2. b. notes 7, 8.?; and 1 Will. Saund. 7, 8.|1 

Upon this statute the case was, an action of debt was brought Sand. 1, to 10. 
upon an obligation, and upon oyer demanded of the condition, ^^^ ^^- ^' ^* 
it was recited, and it referred to indentures, which indentures were j jg^ *g q' 
likewise recited in hcoc verba; the indentures were upon a lease 2 Show. R, 
of a house in Westminster, reserving rent with covenants, Sfc. ; 135. S. C. 
the defendant pleaded 32 H. 8. c. 16. and that he was an ^^J^l'd^^'^b 
alien, S^c. and so would avoid the, lease and the rent, and all the ^Sod^^law rio ' 
.security; divers exceptions were taken to this plea. 1. He has this case two ' 
not said where he was an artificer, but this was over-ruled ; for actions were 
it is a personal quality, and shall follow the person, and is uni- ^'■^"ght ; the 
versal. 2. The defendant ought to have set forth and pleaded rg^t- theother 
the indenture; hnt per Cur., — since the plaintiff has brought it the action here 
into court, as must be intended, and set it forth, the defendant mentioned. la 
may plead upon it without setting it forth again. 3. The plea f*" ^^^ ®*^", 
is, that indentura prccdicta vacua existii, and this was likewise gd • it was in 
overruled ; for the law is, that the indenture and bond make but the first that 
one security, and if the covenant be released before breach, the the objection 
bond will signify nothing. 4. This appears to be a messuage ["fro made, for 
i. u Ju u ^ J -i.^ 1 • u ° the want of the 

or tenement, but he has not averred it to be a mansion-house or averment was 

shop, according to the statute ; and upon this point the court at taken : for the 
first were divided. Keyling held, that messuagium is mansum, other stood 
et quod dare constat non debet ve^-jficare. Morton : Though 7nes- ^ ^. f^, 
smigium be a word of art, and may be applied to other things by opinion of the*^ 
a large sense, as to a barn or chapel ; yet in propriety it is a court was not 

mansion- 



176 ALIENS. 

mansion-house, and sliall be intended so. Twisden and WyndJiattti 
on the point ; ^^{0.1 it ought to have been averred ; for he must bring himself 
Int.^belie'vinV precisely within the statute, especially in such a case as this, 
iha't jutlgment where he would avoid his own contract; but afterwards the 
wouUl be pro- defendant had judgment, 
nounced. 
against him, submitted.] 

2 Show. R. A special verdict found, that the plaintiff made a lease of a 
135. Piliiing- jioQse to the defendant, who was found to be an alien artificer, 
ton V. Pe^^jCh, ^^j ^^^^^ ^^j^j^ j^^^^ ^^^^ made by indenture between the plaintiff 
inent° (o)^iit and defendant, and that there was no other security or promise 
per Cur. -there made by the defendant; and that the defendant entered, and 
are other ways enjoyed so long, for which the plaintiff brought a 5'?m«/ttw 
to evade It; as, ^ ^^y^ ^^ which the defendant pleaded no7i assumpsit ; and the 
to make an i.<>i vi iiii 

agreement for matter bemg round ut supra, the court held, that an assumpsit 

as long as you would not lie. 1. Because this (a) would evade the statute. 

and I please, g. A promise in law ih) never takes place where there is an 

at the rate of ^ , ^ , ^ 

20/. per annum actual agreement. 

for an assumpsit ^iu ije thereon ; or, you shall have my house for so long as you and I please, 

for so much as it is worth. (Jb) No such thing. 6 Mod. 131. 

3 Mod. 94. Debt upon an obligation for performance of covenants in a 
r'hV^^'^1 ^^^^ ®^ ^ house, S^c; the defendant pleaded the statute of 
Front^!" *" ^2 ^* ^* ^' ^ ^' ^"^ ^^^ forth that he was a vintner, and alien 

artificer ; and upon demurrer it was insisted upon for him, that 

a vintner is as much an artificer, and within the meaning of the 

statute, as a mercer, draper, or grocer. Chief Justice : — This 

statute refers to another made 1 R. 3. c. 9. tohich prohibits alien 

artificers to exercise any handiaaft in England, unless as servant 

to a subject skilful in the same art, upon pain of forfeiture of his 

goods ; now the mystery of a vintner chiefly consists in mingling 

wines, and that is not properly an art, but a cheat; so the 

plaintiff had judgment. 

7 Co. 25. Co. If a woman alien, be she friend or enemy, marry a subject, 

Liu. 31. a. b. gj^g shall not be endowed; because, by the policy of the common 

But by the law ^^» ^^ aliens are disabled from acquiring any freehold amongst 

of the crown, US : dower, too, is an estate created by act of law ; and therefore 

if the king mar- the law, which nilfrustra agit, shall not transfer an estate to one 

17 an alien, she ^yj^^ cannot keep it ; but must immediately, in respect of her 

dowed,because ^^S^^ disability, give title to another: and there is a diversity 

princes cannot between such acts of law and the acts of the party himself; as if 

marry accord- an alien makes an actual purchase, Sfc. so aliens shall not be 

d^nUyl^unJess '^nants by the courtesy, by the same reason. 

to persons abroad; and now, by a special act of parliament, not printed, 8 H. 5. 12. 15. 
women aliens who marry with the king's licence, to Englishmen, shall be endowed ; so of 
English women who marry aliens by the same licence; but this latter part can only be meant 
where the alien husbands are after made denizens, that their wives shall have dower of lands pur- 
chased before ; for otherwise they, having no capacity at all to hold any lands of any estate of 
freehold, can derive no title of freehold to their wives, and this act never intended to put 
them in a better condition for that purpose than they were before ; but it must be intended 
of land purchased before their denization ; since as to land purchased after, they would not 
want the assistance of an act of parliament, being by the common law dowable of these. Roll. 
Abr, 675. If one marries a woman alien without such licence, and then sells his lands, and 
after the wife is made a denizen, she shall not be endowed, because her capacity began by the 

denization, 



(C) Of the Disadvantages 'which Aliens lie under, 177 

denization, and she was before absolutely disabled to hold any land ; but if this marriage were 
by the king's licence, then it seems the wife may be endowed, because being married conform- 
able to that act, her title to dower began presently, and cannot be defeated by any after-act of 
the husband's. Co. Litt. 33. a. 13 Co. 23. 

Aliens seem not incapable [of the superior ecclesiastical pre- Comp. in- 
fer ments (a),] and though this practice, says Watsoji, has always cumb. 213, 
prevailed, yet, says he, it proceeded rather from the pope's p^^" Hughes's 
usurpation, and a submission to his pretended authority in q ■^^^ ^ ^i^ 
church matters, than from any nice distinctions made use of Abr. 548. 
between spiritual and laymen, that the former would less dis- 4 Inst. 338. 
cover the secrets of the realm, or transport the treasure thereof ^^°°',t^' 
to nourish the king's enemies, than the latter. ^^^ „gg ^^* 

(a) Aliens prohibited to take benefices without the king's licence. 5 R. 2. c. 3. 7 R. 2. c. 12. 
1 H. 5. c. 7. [To the first of these statutes, it is said, in the old abridgment, that the Lords 
Spiritual did not assent.] 

[By the statute of 24 G. 3. c. 35. the bishop of London, or 24 G. 3. c. 35. 
any bishop appointed by him, is enabled to ordain aliens either 
as priest or deacons, without requiring them to take the oath of 
allegiance, provided that they do not officiate in any place within 
the king's dominions : and further, that in the letters testimonial 
of such orders, the name of the person so ordained be inserted, 
with the addition of the country to which he belongs, and the 
further description of his not having taken the oath of allegiance, 
being exempted from so doing by this act. 

II Aliens are disqualified to serve on juries or inquests, except gQ 4. c 50 
juries de medietate lingua. ' § 3. Alienage 

IS a ground of challenge to a juror, and the objection must be taken when the party has an 
opportunity of challenging. And it seems not to be a ground- of challenge to a special juror. 
See the King v. Sutton, 8 Barn. & C. 417. 

By 5Q G.3. c. 86. various regulations are established respect- 
ing aliens arriving in or resident in this kingdom ; but this sta- 
tute, after having been continued by several subsequent acts, 
has now expired. By 7 G. 4. c. 54<. (commencing 1st JwZy, 1826) 7G. 4.c. 54. 
the above act is recited as being about to expire, and it is 
recited to be expedient, in lieu of its regulations, that provision 
should be made for a complete registration of all aliens, and it 
is enacted that every alien in the realm at the commencement 
of the act shall, within foui'teen days, make a declaration of his 
abode, name, rank, 4'^.; and if a domestic servant, then also of 
the abode, S^c. of his master or mistress, and of the country 
from whence he came, or of which he is a native, and of the 
time when he last came into the realm, and shall, within the 
said fourteen days, transmit the same to one of his majesty's 
secretaries of state, or, if in Ireland^ to the chief secretary of the 
lord lieutenant. 

By § 2. the master of every vessel arriving from foreign parts $ 2. 
sliall immediately on arrival declare to the chief officer of cus- 
toms at the port of arrival, whether there is any alien on board, 
and shall specify the number (if any) on board, or who have 
landed from his vessel, and their names, rank, Sfc, under penalty 

Vol. I. N ' of 



178 ALIENS. 

of 20/. for every false declaration, and of 10/. for every alien 
whom he shall have neglected to declare, 
5 J, By § 3. every alien who shall, after the commencement of the 

act. arrive in the kingdom shall deliver to the chief officer of 
the customs at the port of debarkation any passport in his pos- 
session, and declare in writing the name of the vessel in whicli 
he shall arrive, and also his name, rank, 8fc. and the conntry 
from whence he shall have come, and the place to which he is 

going, and the name of the person (if any) in the realm to whom 
e is known ; and if any alien shall neglect or refuse to deliver 
up his passport, he shall forfeit 5/.; and if he shall neglect to 
make such declaration, or shall wilfully make a false one, he 
shall (by § 9.)) on conviction before two justices, forfeit 50/., or 
be imprisoned not exceeding six months. 

§ 4 & 5. By § 4 & 5. the officer to whom the passport shall be de- 

livered and declaration made shall register the declaration, and 
shall deliver a certificate thereof to the alien, and shall, within 
two days, transmit the declaration and copy of the certificate 
to the alien office, Westminster. 

§ 6. By ^ 6. every alien shall, within one week after his arrival, 

produce such certificate at the alien office, Westminster^ and 
declare where he intends to reside, or, if the place to which he 
intends to go is more than five miles from Westminster, shall 
transmit such certificate and declaration by post to the alien 
office, or, in case of neglect, shall be punished as above. 

$ 7. By § 7. every alien shall, on the first day of January and 

Jidy, or within a week therefrom, make a declaration of his 
residence, and state therein at what place he intends in future to 
reside, and transmit the same to the alien office, under the 
penalties above mentioned. 

§ 8. By $ 8. one of the secretaries of state may require any alien 

to make a declaration of his actual place of residence, and of the 
place at which he intends to reside in future, at shorter intervals 
than those above mentioned ; and if the alien shall refuse, he 
shall be punished as above. 

§ 10. By § 10., on receipt at the alien office of any declaration in 

the cases aforesaid, a clerk nominated by the secretary of state 
shall, within three days, make out a certificate, setting forth tlie 
name, rank, S^c. of the alien, and his place of abode, and shall 
transmit the same by post to such alien ; and any alien being 
by his own defeult without such certificate, or residing without 
lawful excuse in any other place than that expressed in it, shall 
forfeit 20/. 

{For further provisions^ see the act,)^ 

* 
(C 2) How far the Laws of this Country attach upon 

Aliens. 

1 Wooddes. A^ ^^*^"* whilst he resides here, is generally subject to our 
379. Fost. Cr. laws, and owes a local and temporary allegiance to the sove- 
reign, 



(C 2) How far the Laws of this Country attach upon Aliens. 179 

reign, by whose authority those laws are administered, and by Law is 5. 
whom his person and property are protected ; consequently, if ' Hawk. P. C. 
during such residence he commit an offence, which in the case 9 Ann c 16 ' 
of a natural-born subject would amount to treason, he may be Hob. 271. 
dealt with as a traitor; and this whether his sovereign be in 
amity or at enmity with us. My Lord Coke's position, therefore, s Inst. 4, 5. 
that an alien enemy cannot be guilty of treason, must be taken 
with this restriction, namely, where he invades this country, and 
is taken in war : in which case, indeed, he is not punishable at 
all, according to the course or by the rules of the municipal in- 
stitutions, but is to be dealt with according to the law of nations 
in martial affairs. 

It is declared by statute 32 H. 8. c. 16. § 9. That every alien, 
coming into the king's dominions, shall be bounden by and unto 
the laws and statutes of this realm. 

But a French prisoner of war, being indicted for privately Post. Cr. L. 
stealing in the shop of a goldsmith and jeweller a diamond ring, 188. note, 
which by statute 10 & 11 W. 3. c. 23. is an offence punishable Moliere's case. 
with death, the judge who tried him thought it improper to i^arned^writer 
proceed capitally upon a local institution, and therefore advised observes, the 
the jury to acquit him of the circumstance of stealing in the shop, humanity of 
and to find hira guilty of simple larceny to the value laid in the '^^ J"^se was 
indictment.] ^ ' "^ at least more 

-^ conspicuous 

than the eoundness of the principle, as a point of mere law'. I Wooddes. 382. 

II Aliens are subject to be tried here for offences committed on The King ▼. 
the high seas, under the provisions of the 28 H. 8. c. 15. ; but it Depardo. 
appears that they are not liable to trial by special commission, Aliens^are en- 
issued under the S3 H. 8. c. 23. for offences committed on shore titled to be 
in foreign countries. Where a Spanish prisoner of war entered tried by a jury 
as a volunteer on board an East India company's ship, and, '(^ medietate 
while remaining one of the crew of such ship, committed a man- "W^' „ ^!f 

1 1 ^ • ^y • 1 1 1-1 1 . 6 (j. 4. C. 50. 

slaughter, at Canton m China, where the ship lay, and was m- § 47, 
dieted at the Old Bailey for feloniously killing and slaying, on 
the 43 G. 3. c. 1 1 3., a case was stated and argued before the 
twelve judges, on which no judgment was given ; but the pri- 
soner was afterwards discharged. || 

[Aliens are comprehended within the statute 25 E. 3. c. 4. for 2 Hawk. P. C. 
extending the benefit of clergy, according to a very old interpret- ^^n[ ^' ^'^oo 
ation of that law. * ^'"Sy'P' 

A resident alien, it hath been adjudged, is entitled to the be- Courteen's 
nefit of a general pardon ; but, if he is not in the kingdom at the *^^^» ^^^' ^'°' 
time of the promulgation of the pardon, he is not within the be- 
nefit of it, for he is no otherwise a subject but by his residence 
here. 

Aliens are subject to, and shall have advantage of the statutes ^^ 21. Jac.s. 
against bankrupts. ^' ^^' *' ^^' 

The property of an alien resident abroad, consisting of stock 1 Atk, 19. 
in the public funds, or other personal effects in this country, is llW^hat court 
subject to the controul of the Court of Chancery, {a) ^^X the copy- 

right of a foreigner. Delondre v. Shaw, 2 Sim. 257. Where both parties were subjects of 
Denmark^monQy belonging to the wife was ordered to be paid to the husband, the law o( Den- 
mark not requiring a settlement, Dues v. Smith, 1 Jac. 544.|| 

N 2 But 



180 



ALIENS. 



Pi pen V. PipcPj 
Ainbl. 25. 
Burn V. Cole, 
Jd.-ilS. 



Mclan V. Duke 
of Fitz James. 
1 Bos. & Pull. 
138.; and see 
Talleyrand v. 
Boulanger, 
3Ve8.449. 
De la Vega v. 
Vianna. 
1 Barn. & 



But if an alien resident abroad dies intestate, his whole pro- 
perty here is distributable according to the laws of the country 
where he so resided : but the residence must be stationary, not 
occasional, else the municipal institutions will not attach upon 
the property.] 

II Where an alien in a foreign country entered into a contract 

which, according to the law of that country, did not subject his 

person to arrest, it was held by the Court of Common Pleas 

{Heath J. dissent.), that he was not liable to arrest upon it in this 

country. 

But Lord Ellenhorongh in 2 East. 445. expressed his dissent 
from this doctrine, and it has lately been overruled by the Court 
of King's Bench, who have decided that a party may be arrested 

Adolph. 284.; jj^ ^j^jj. country for a debt contracted in a foreign country, though 

& C. 658. ' ^^ ^^^ of s\iic\\ country do not allow arrest for debt. 

1 Jac. & VV. 405. 

.78 G. .5.0. 50. By 38 G. 3. c. 50. § 9. it was enacted, That aliens in this 

§9. 1 he pro- country, who had quitted their countries by reason of the revo- 

Visions oi tnis . * ^ 

act were re- lution and troubles in France, should not be liable to be arrested 

pealeil, but for any debt or cause of action contracted while such aliens were 

were re-enact- not within the dominions of his majesty ; and in case of any such 

by subse- arrest, the alien should be discharged by his majesty's courts, or 
quent acts, , .' , . . rs j j j ' 

which were ^Y ^ J""ge m vacation, 
last continued by 3 G. 4. c. 37, and they are now expired. 

Sinclair v. Charles Philippe, Monsieur de France (afterwards Charles the 

Philippe Tenth), having contracted with Sinclair, at Coblentz, for raising 

Monsieur de troops for the service of the French princes, was held to bail in 
France, 2 Bos. England for money paid here, and on an account stated here ; 
but the Court of Common Pleas held, that the money paid, and 
the adjustments in England, were referable to the original con- 
tract abroad, and that the case was within the statute, and they 
discharged the defendant on a common appearance. || 

(D) What Actions Aliens may maintain ; and therein 
of the Difierence between an Alien Friend and one 
whose King* is at Enmity with ours. 



& P. 563. 



Co. Lit. 11 9. b. 

Anders. 25. 
Dyer, 2. b. 
[ (fl) And this 
though resi- 
dent abroad. 
Dyer, 2. b. But 
in such case 
the courts of 
K.B.andC.P. 
require secu- 
rity for costs; 



^N alien friend may have personal actions (a), but not real ; an 
alien enemy shall not have real, personal, or mixed action. 
The reason why an alien friend is allowed to maintain personal 
actions is, because he would otherwise be incapacitated to mer- 
chandize, which may be as much to our prejudice as his ; but, 
as to the allowing of him to maintain real actions, there is no 
reason for it, because there is no necessity that he should settle 
amongst us : an alien enemy (6) is disabled, from the prejudice 
that may accrue to the king and kingdom, if he were allowed to 
not. however, niaintain any actioj. 

"u''' S J* ^j' "'•, ^ '^^"" ^- 267. 362. 2 H. Black R. 1 18. 4 Term R. 697.] (3) But 
who &hall be said an alien enemy, and how it shall be tried, vide 9 Co. 51. a. That it shall be 
tried by the record m Chancery, whether his prince is at peace or enmity with ours, for every 

leaguej 



(D) What Actions Aliens may maintain^ 8^c. 131 

icapue is of record ; and Cro, El. 142. Owen, 45. That open acts done b}' his prince are 
sufficient, and that it is not necessary that a war be proclaimed. Turks and Infidels are not per- 
petui inimici, nor is there a particular enmity between them and us ; for the difference between 
their religion and ours does not oblige us to be enemies to their persons. Salk. 46. j)l, 2. said 
to be the words of L. K. Littleton. 1 Atk. 51. Vide Skin. 167. 204. 

A merchant stranger shall have an action for saying he is a Yelv. i98. 

bankrupt, for by law he may have personal actions, and these f uer'cote and 

1 5 J* • ■ 1- ]•, • u- 4. 1 Morison. 

words tend to impair his credit in his trade. g^j^.^. J34 gn 

[By an express law, viz. St. 31 H. 6. c. 4. redress is pi'ovided for aliens who are injured by the 
king's subjects on the sea, or in any part of the realm. 2 R. 2. s. 2. 3 Bulstr. 28.] 

II An alien enemy, father of a child born in England of an The King v. 
English wife, is entitled to the custody of the child ; and the De Manneville, 
Court of King's Bench will not interfere with his right, unless ^^^^^221. 
they see reason to believe that he intends to abuse it, by send- 
ing the child out of the kingdom, or in some other manner, [j 

An alien friend, merchant, may upon a statute extend lands, 1 1 Ed. 3. Rot. 
which the king shall not have upon office, and for which he ?'^- I^yp'"* 2.b 
shall have an assize in case of ouster ; for the main end andde- *" "f^rg*"* 
sign of both the statute-staple and merchant was to promote and 
encourage trade, by providing a sure and speedy remedy for 
merchant strangers, as well as natives, to recover their debts at 
the day assigned for payment. 

An abbot, prior, or prioress alien shall have action real, pei:- Co. Lit. 129, 
sonal, or mixed, for any thing concerning the possessions or a. b. Palm, 
goods of their monastery here in England, because they sue in ^^' ^-P- ^^'^ 
their corporate capacity, and not in their own right to carry the p A^u^* ^'*u ' 
effects out of the kingdom, [a) sanie pnnciple 

ft hath been holden, notwithstanding the statutes of 5 R. 2. c. 3. 7 R. 2. c. 12. and 1 H. 5. c. 7. 
that an alien, incumbent on an ecclesiastical benefice, may maintain an action concerning the 
glebe, tithes, &c. Hughes's Parson's Law, c. 10. cites Dr. Seaton's case, M. 8 Jac. 1. C. B.] 

So an alien friend may be an administrator, and shall have Cro. Car. 8. 

administration of leases, as well as personal things, because he ^ Upwell 

hath them in another's right, and not to his own use. Vent. 417. S. 

C. cited. 

But it has been long doubted, whether an alien enemy may Cro.Eliz. 142. 

maintain an action as executor : for on the one hand it is said, ^^"' ^^'j , 

that by the policy of the law, alien enemies shall not be permit- office of Exe- 

ted to bring actions for the recovery of effects which may be cutors, 15. 
carried out of the kingdom, to the impoverishment of ourselves, 
and enriching of the enemy ; and therefore public utility must be 

preferred to private convenience : but on the other hand it is said, Mollov, 870. 

that these effects of the testator are not forfeited to the king by Cro. Eliz. 683. 

way of reprisal, because they are not the alien enemy's, he being ^"- ^•''^• 

to recover them for others: and if the law allows an alien enemy if^-^^'^lt^'^^^' 

\ rr 11 T /• • 1 • 11 okm. o/O. 

to possess the etiects as well as an alien friend, it must allow yidf. supra, 

him power to recover them ; and if it were otherwise, it would be tit. Abatement 

a prejudice to the king's subjects, who could not recover their CB), 3. 

debts from the alien executor, by his not being able to get in the 

assets of the testator. 

II Not only an action cannot be maintained by an alien enemy, Brandon v. 

but an action lies not in favour of one, though the plaintiff' on ^,^^^'"' 

N3 tl^^ 6rennR.23. 



IM 



ALIENS. 



M'ConncU v. 
Hector, 3B08 
&P. 115. 

Omealey v. 
Wilson, 
1 Camp. 481. 
Roberts v. 
Hardy, 3 
Made ft S. 

533. 



tlie record be a subject of Great Britain. Thus, where an 

action was brought on a policy by the English agent who 

effected it, to which the defendant pleaded that the persons 

interested (whose interest was alleged on the record) were 

aliens born, and that before the ship sailed their sovereign was 

at open war with the king of Great Britain, the plea was held 

good ; and a replication, that the persons interested were indebted 

to the plaintiff in more money than the value of the property 

insured, was held insufficient. 

Flindt V. But where the plaintiff sued as the British agent effecting the 

Waters, 15. policy, and the defendant pleaded the general issue, and it 

East, 260.; and appeared that the parties interested only became alien enemies 

see 13 es. . j^ffgj, ^j^g j^gg jj^ppened, but before the suit; it was held, , that 

the defendant could not take advantage of that fact by a plea 

in bar, since the disability was only temporary, and might be 

removed by the war ceasing. 

An Englishman, residing and carrying on trade in an enemy's 
country, is regarded as an alien enemy, and disqualified to sue. 
And the mere residence, without trading, would seem to 
take away his right to sue. 
De Luneville v. Phillips, 1 New R. 97. 

However, where an Englishynan went to America with his 
family immediately after a declaration of war by that country 
against Great Britainy but before such declaration was known 
in England, and an act of congress enabled British subjects to 
quit America within six months from such declaration, but he 
remained in that country, but did not trade ; it was held, that 
this mere residence did not, under the circumstances, amount to 
adhering to the king's enemies, so as to incur the disability of 
alien enemy. 

If an alien is carrying on trade in an enemy's country, he is 
it seems disabled to sue, notwithstanding he is resident in such 
country, as consul of a neutral state. 

If a contract be made with an alien enemy while he is such, it 
cannot be enforced in England, even after peace is restored. 
Thus, where A.y an alien enemy having goods in the hands of 
B, in England^ drew bills upon him, which B. accepted on 
; account of the goods, and A. indorsed them to C, a British 
subject residing in an alien's country, who did not sue till 
after peace was made ; it was held, that as A could not get at 
his funds in this country directly, neither could he do it by 
indorsing the bills to a third party, who must have been cogni- 
zant of his object, and the plaintiff accordingly could not 
recover. 

Where bills were drawn by one British prisoner of war, de- 
tained in France, in favour of another on a British subject in 
England^ and indorsed by the payee to a French banker, an 
alien enemy, who sued on them after the restoration of peace ; it 
was held by the Court of Common Pleas, that the action was 
sustainable under the peculiar circumstances of the case, since 

the 



Atbrecht v. 
Sussmann, 
2 Ves. & B. 

323. 



Willison V. 
Pattcson, 
7 Taunt. 439. 
and see Bran- 
don V. Curling, 
\ East, 410. 



Antoine v. 
Morshead, 

6 Taunt. 237. 
1 Marsh 558. 
S. C. ; and see 
Daubuz V. 
Morsheatl, 



(D) What Actions Aliens may maintain^ ^c. 



183 



the bills were not drawn in favour of an alien enemy, but by 6 Taunt. 332. 

one British subject in favour of another, upon a British subject ; ■^"'P' Bous- 

and that the indorsement conveyed a good title to the plaintiff, ^^^cker.isVes. 
on which the king might have sued during the war ; and he not 
having so done, the plaintiff might sue after the proclamation of 
peace. 

The plea of alien enemy is a bar to a bill for relief in equity, Albrecht v. 

as well as to an action at law : but it would seem not sustain- Sussmann, 

able to a mere bill for discovery ; for, as an alien may be sued Ls ^ 
at law, and may have process to compel the appearance of his 
witnesses, so he may have the benefit of a discovery.]! 

If an alien enemy comes here sub salvo conductu^ he may main- Salk. 46. pi. 1. 

tain an action ; so if an alien amy comes here in time of peace Wells and 

per licentiam domini_ regis, as the French protestants did, and Williams. Ld. 

lives here siib protedione, and a war afterwards happens between Fost™Cr^L,aw 

the two nations, he may maintain an action, for suing is but a ise. Bro. tit*, 

consequential right of protection {a) ; and therefore an alien Propertie, p. 

enemy, who is here in peace under protection, may sue a bond ; ^^- ^"■) But an 

aliter of one commorant in his own country. wtfo has^sudi 
protection, must plead it. Faresl. 1 50. Sylvester's case. Ld. Rayra. 283. [But if alienage 
simply be pleaded, it is not necessary to reply, that the plaintiff ia not an alien enemy. 2 Stra. 
1082.] 

[It hath been heretofore holden, that an alien enemy may Record v. 
maintain an action in this country for the recovery of a right Bettenham, 
claimed to be acquired in actual war; but that opinion hath been 3 Burr. 1734. 
since over-ruled, and it hath been determined in the Exchequer ^^lack R. 563. 
Chamber, that by the municipal law of this country no such sui t Blackburn 
can be supported, Dougl.6i9. 

Anthon v. Fisher, Dougl. Ad. 30. 

An alien enemy, prisoner of war, is not entitled, under any Anon. 2 Black, 
circumstances, to his discharge upon a habeas corpus.'] ^' *^^'** 

II Whether an alien enemy born, who is a prisoner of war, can 
maintain an action in the courts here, does not appear to have 
been decided, though judges have expressed strong opinions in 
the affirmative. In a case where the question was raised, no 
judgment appears to have been given. But where a native of a Maria v. Hall, 
state in amity with Great Britain was taken prisoner while 1 Taunt. 33. 
serving on board an enemy's ship, and by the authority of the y B^nnat?ne 
king's officer was put on board 2l British merchant ship, then i'bos. & Pull, 
in want of hands, and did his duty like the rest of the crew on 163. 
the voyage to Great Britain ; it was held, that he might main- 
tain an action for wages as a seaman for the voyage. || 

[A foreigner is allowed to put in his answer to a bill in equity Simmonds v. 
in his own language, but a sworn translation must be also filed ^^^"^i 

-"•it. ?,«-* 

Interrogatories for the examination of witnesses who are Lord Belmor^ 
foreigners must be in £«g//5^ / and being afterwards translated, Jgr'cf^ch"* 
their answers must be translated by sworn interpreters.] r, 9o'. 



N 4 



(E) Of 



18* ALIENS. 

(E) Of pleading Alienage. 

T F one born in Jersey, or elsewhere within the king's obedience, 
Co Lit. 129. b. •■- brings a real action, and the tenant pleads that the demandant 
47 alceb 98 '^ "" "^'^" \)oxn under the obedience of the French king, and 
Leon. 78, 79. ' out of the ligeance of, 8^c. the demandant may reply, that he 
C'arter, 50. was born at such a place in England^ within the king's alle- 
Rast. Ent. 605. gjance, ^x. and such hath ever been the manner of pleading in 
la) Q«.'lfthc such case, (fl) 

best method would not be, to say, born within the king^s obedience, viz. at, &c. the venue laid 
by the plaintiff in hiis declaration ? 

7 Co. 1. 9. in ^n assize tempore Jac. 1. the defendant pleaded, that the 

Lit. Rep. 26. plaintiff was born apud E. infra regnum Notice ac intra ligean- 

tiam didi domini regis regni sui Scotia^ ac extra ligeantiam dicti 

domini regis regni sui Anglice ; and this was holden no good 

plea, because it referred ligeance and faith to England, and not 

to the king. 

Sid. 357. Free- In debt on an obligation, which was for payment of rent 

man v. King, reserved by lease for years ; the defendant pleaded the 32 H. 8. 

c. 16. and that he was an alien artificer, <^c.; the plaintiff replied 

that he was no alien artificer ; but, having laid no place where he 

was born, the replication was held bad. 

Carth. 302. '^^^ defendant pleaded in abatement, that the plaintiff was an 

Nicholas v. alien enemy, born in such a place in France ; the plaintiff replied 

Powlct. But that he is indigena, and born at such a place in the kingdom 

^'^s '^H ^"^ ^^ England, et non alienigena modo et forma prout, &c. et hoc 

561. Asht. 11. P^^^^ ^^°^ inquiratur per patriam : upon demurrer to this repli- 

the like repli- cation it was holden to be ill; for that the plaintiff" did not rely 

cations. If the upon the first part of it, that he. was born in England, and so 

clmclud d'h" *^°"*^1"^^ ^i^^ ^^ averment, that an issue might be taken by the 

replication Other side, viz. that he was not born in England, and that this 

with an aver- matter might be triable by a proper visne ; but here he hath put 

ment only, the alien or not alien in issue, viz. non alietiigena modo et forma, 

«^^^r^*^''*"^*^' which cannot be tried for want of a visne; and therefore judg- 

non alienwcna, . -,11..,,,,,, J o 

had been only "'^"* ^'^^ given that the bill should abate. 

Mirplusage, and helped upon a general demurrer; so resolved, Garth. 265. Brodeck v. Briggs, 
yide Comb. 212. 

p^^^'^ooo Where alienage is pleaded in abatement, and the plaintiff' 

per H^i C.J ^^Pl'^s indigena, he may either take issue, or conclude et hoc 
paratus est verificare ; but if in bar, he must take issue; and this 
is the reason of the difference in the two precedents in Rastal. 
Bro. tiL Deni- If alienage be pleaded to an alien in league, it must be 
Rit.\Iu.252. P^^^'l^^ in abatement or disability of the plaintiff; but if it 
605. CarL 49. ^^ ^^ ^^ vWen enemy, it may be pleaded either in abatement or 
Co. Lit. 129. in bar to the action, because it is forfeited to the king as a re- 
a.b.(fl)Notto prisal for the damages committed by the dominion in enmity 
be pleaded to a ^j^h him. (a) 
personal action ^ ' 

without alleging the plaintiff to be an enemy. 2 Stra. 1082. See 12 Mod. 125. [In an action 
by an alien enemy for a right acquired in actual war, the defendant, it seems, may avail him- 
Ta Sni^ hwT*^^°u ^'f, ^'«"a§e without specially pleading it. Anthon v. Fisher, Dougl. 
AO. JO.J pwhen the plaintiff u an alien enemy at the time of the cause of action arising, 

this 



AMBASSADORS. 185 

this may be given in evidence on the general issue, or pleaded in bar; but when he became 
so subsequently to the accruing of the cause of action, it only goes to his disability to 
sue, and must be pleaded in abatement. Doug. 649. note 132. 6 Term R. 24. 15 East, 260. 
3 Camp.R. 152. The courts will not in general allow the plea of alien enemy to be pleaded 
with any other plea. 1 Bos. & Pull. 222. 2Bos.&Pull.72. 12East,206. loEast,326. And the 
plea being disfavoured, must aver that the plaintiff was born in a foreign country at enmity with 
this country, and came here without letters of safe conduct. 8 Term R. 166. If the plaintiff 
being an alien amy at the commencement of the suit, afterwards in the course of it becomes an 
alien enemy, and this appears on the record, judgment will be given that he cannot further 
maintain his suit. De Bret. v. Papillon, 4 East, 502.1| 

[Alienage cannot be pleaded to a scire facias on a judgment ; West v. Sut- 
Ibr the plaintiff having been admitted to be able to recover judg- ^"' ^ ^°5" 
ment, cannot be disabled from having execution upon it by mat- 
ter which was precedent to it] 

II And where the plaintiffs had become alien enemies since the Vanbrynen v. 
verdict, the court refused on application to stay the judgment ^iVilson,9East, 
and execution, saying, if the defendant had any remedy at law, ^^^* 
he might avail himself of it. II 



AMBASSADORS. 



A N ambassador (a) is a person sent by one sovereign prince {b) ^^^ Difference 
to another, to transact in the place of his sovereign such between am- 
matters as relate to both states. The manner of appointing and bassador ordi- 
receiving public ministers, their duty, power, and privileges, 8^c, nary and ex- 
being chiefly regulated by the civil law, or law of nations, I must ]vfolloy" b7i. " ' 
refer to other books for those matters, and shall here only insert c. x. An 
what seems most worthy of notice in our law books ; observing agent repre- 
that our law herein pays the greatest regard to rules prescribed se^ts the affairs 
by the civil law and the law of nations. ambassador 

the grandeur of his master. Molloy, ibid, {b) By the law of nations, none under the quality 
of a sovereign prince can send ambassadors. Ibid. And it is said by Lord Coke, that there 
can be no ambassador without letters of credence from his sovereign to another that hath a 
sovereign authority. 4 Inst. 153. But the electors and princes of the empire send or receive 
ambassadors, touching matters which concern their own territories. Molloy, ibid. And so 
the Hans towns, being free imperial cities, have the same regalia by prescription or grant. 
Ibid. But a king deprived of his kingdom and royalty, hath lost his right of legation. Molloy, 
bk. i. c. X. § 5. i7i margin. ||Grotius states the rule that none but stimmi imperii compotes 
inter se can lawfully send ambassadors, but admits exceptions in the case of civil wars, when 
a nation is so divided that it is doubtful where the jus imperii resides, or where two claimants 
contend with doubtful right for the succession. De Jure B. et P. lib. ii. c. xviii. § ii. 3. ; 
And Bynkershoek, in such cases, ascribes the power of sending embassies to that faction 
which has the rei agendi potestas, and therefore joins with Grotius in approving the censure of 
Tacitus, Histor. lib. iii. c. Ixxx. on the violence offered by Vespasian to the embassy of Fitelkusy 
since V itcllius a.n6. t\\G senate then held the chief power of the state; — but had Vespasian 
sent ambassadors to Vitellius they would, says Bynkershoek, have been only the messengers of 
rebellious subjects, who have clearly no authority, according to the law of nations, to send 
embassies to their sovereign, as he shews with reference to instances in modern history. 
Bynk. Quasst. Jur. Pub. lib. ii. c. iii. A sovereign dc facto enjoys this right without reference 

to 



18C AMBASSADORS. 

to his title. IbuL And this author extends it to municipalities and provinces having compe- 
tency to transact those matters which their embassy concerns. He even sneers at the 
punctilio of Queen Elizabeth in refusing to receive an epibassv from the Duke of Alba, 
the object of the embassy being to obtain the restoration of a sum plundered. Jbid. 
p 207 ; and see Wicquefort Ambassadeur, lib. i. § 2.1| If sent from a kmg or absolute 
potentate, though in his letters of credence he is termed an agent or nuncius, yet he is an 
ambassador or legate. 4 Inst. 153. Ambassadors were sent to the pope, being a temporal 
prince, and also his ambassadors received here, who were sworn not to attempt any thing 
prejudicial to the king or kingdom. 4 Inst. 156. 

Hob. 78. 113, An ambassador cannot, as procurator, exhibit a bill in our 
114. Don Die- courts for a certain number of his fellow subjects, without an 
go Servienti authority from them ; for every procurator must sue in the name 
Sprnd^kmn- ^ of the principal, and cannot be such without his allowance ; nay, 
bassador, and the king cannot make a procurator for all his subjects, without 
Sir Richard (heir consent, nor would a release, sentence or discharge against 
Bmgley. ^^^^ ^ ^^^ ^^ ^ discharge against the principal : also the office 

of an ambassador doth not imply a private procuration, but for 
the public ; and not for a particular subject, otherwise than it 
concerns the king and his ministers to protect him in foreign 
kingdoms in nature of a negociation of state ; and therefore, 
though he may prosecute and defend for a private subject at 
the council-table, which is a court of state, yet when he comes 
to settled courts he must observe the essential parts of their pro- 
ceedings. 
4 Inst. 152. I" ^^ bishop of Ross's case, ann. 13 Eliz. the questioi>being 

Molloy, b. 1. - an legatuSi qui rehellionem contra principem ad quern legatus con- 
0,10. $9. S.C. citas, legati privilegiis gaudeat, et non ut hostis pcenis subjaceat, it 
cited, and said, ^^g resolved he had lost the privilege of an ambassador, and was 
that ambas- i • ^ , • i ^ r & 

sudors cannot, subject to punishment. 

by the law of nations, be defended when they act against the state, or person of the king with 
whom they reside; and vide 3 Bulst. 28. and Roll. Rep. 18S. in which last book, the king's 
attorney makes a difference between a conspiracy to kill the king and other treasons com- 
mitted by an ambassador. — — . |[0n the much contested question as to an ambassador's 
criminal responsibility to the courts of the country where he resides, the authorities of our 
common law are not quite in accordance with the writers on the law of nations, though the prac- 
tice of this country has, in almost all instances, conformed to the principles laid down by the 
latter. The jurists who treat of the^'zM gentium, with one consent allow to the government to 
which the ambassador is sent, all such proceedings against him in case of his criminal machin- 
ations against the state as are justified by principles of self-defence or preservation. If he 
engages in hostile attempts with open force, he may be repelled with force as an open enemy, 
and his life may be taken, if necessary, to suppress his plots. If he is detected in secret con- 
spiracies, he may be arrested and examined, and his papers seized, and his person confined as 
k)n| as the necessity of the case requires it. But when the danger and necessity are past, 
or in cases of crimes not affecting the state (however atrocious), where such danger and 
necessity never exist, these writers are unanimous in asserting the ambassador's immu- 
nity from all proceedings for mere purposes of punishvient; for as Grotius expresses it, 
" securiioi kgatorum utUitati qucs ex poena est pr<Eponderat :" besides that the deserved 
punishment may be obtained through the medium of the ambassador's own sovereign, or if he 
refuses it, may be a just cause of war. Grotius de Jure B. et P. lib. ii. c. xviii. de legatio- 
num jure. Vattel, b. iv. c. vi., enforces the same principles by cogent reasonings drawn from 
the necessity of an ambassador's general exemption from municipal law ; and Bynkershoek, 
de Foro Legatorum, c. xvii., xviii., xix. ransacks ancient and modern history for examples 
bearing on the question, which certainly shew the preponderating usage of nations, ancient and 
modem, to be consistent with the principles of the above writers ; though some instances of 
punishment are not wanting, as that mentioned by Livy. lib. xxv. c. vii. of the Tarentine envoys, 
and by Sallust. Bell. Jugurth. c. 55. and others. On the other hand, among our own text 
authorities. Lord Coke broadly asserts, (4 Inst. \ 53. post. p. 188.) that an ambassador may be 
tried as a private alien for treason, felony, adultery, or any other crime against the law of nations 
— a doctrme which would render him liable for all such offences against municipal law as are mala 



AMBASSADORS. 18^ 

inse, including every criminal fraud. Lord Coke cites no authority for his position, which is quite 
collateral to the case of Pallache, of which he is then treating. Sir Matthew Hale, 1 Hist. 
PI. C. 99. expresses himself doubtfully as to an ambassador's liability to punishment as a traitor 
for treasonable machinations, but "holds him clearly amenable for other capital offences, as 
rape, murder, &c. on the technical ground that the indictment runs contri pacem regis only, 
and not contra ligeanticB sius debitum. Foster is clear that, as to state crimes, ambassadors 
are to be considered at worst but as enemies subject to the law of nations, never as traitors 
subject to the municipal law, unless, perhaps, in case of attempts against the king's life 
— a distinction also adopted by Blackstone, b. i. c. vii., upon the authority of a state- 
ment of Sir Francis Bacon as counsel, in 1 Roll. Rep. 185. and State Tri. vol. ii. p. 881. 
Foster, however, is clearly of the opinion of Lord Hale with respect to murder and other 
offences. The only instance which appears in our books in accordance with these doc- 
trines, (for Pallache's case, 4 Inst. 152, and 5 Bulst. 27. is no authority one way or the 
other, since whether an ambassador or not (which was doubtful) his offence did not 
amount to piracy, and therefore he was not triable,) is that of the Portuguese ambassador's 
brother, Don Pantaleone de Sa, who was tried and beheaded for murder during the protec- 
torate 1654. (See the case at length, Stat. Tri. v. 5. 462.) This person, as appears from 
the account of Doctor Zouch one of the commissioners appointed to try hira (see the preface 
to his tract Solutio qucestionis de Legati delinquentis competente Judicio, B Sta. Tri. 482.) was 
not himself invested with any ambassadorial character, though Hume, v. vii. 237. erro- 
neously states him to have been joined in the commission with his brother. The case is 
not therefore an example of the punishment of an ambassador; though it must be ad- 
mitted that, as part of the ambassador's retinue, the individual would, according to 
Grotius, Vattel, and Bynkershoek, be entitled as a comes legati to the same immunity as the 
ambassador himself, — and the threats of violence by which CVo7WM;e// compelled the ambas- 
sador to deliver him up, were contrary to the express authority of Grotius, that a person 
in the retinue of an ambassador committing the gravest delinquency ought only be de- 
manded at his hands, but not taken by force. Lord Hale mentions the case in support 
of his dpctrine above stated : — neither Foster nor Blackstone condescend to notice it. 
Bynkershoek mentions the fact without comment, de Foro Legatorum, c. 17. Claraidon 
calls it an " exemplary piece of justice," which it might be, and nevertheless be con- 
trary to the voluntary law of nations. Hume, V. vii. 237. and Burnet, Hist, own Times, 
vol. 1. consider it as a violation of that law; and though it appears to have been quoted by 
the Emperor of Germany as a precedent to justify carrying off an offensive plenipotentiary 
from a congress at Cologne (5 Sta. Tri. 486.), yet, perhaps, considering the period and cir- 
cumstances of the case, and the weak condition of Portugal, which was then purchasing a 
peace of Cromwell, it hardly affords a very authoritative decision even as to the responsibility 
of an ambassador's attendant for an atrocious crime against natural law ; and as to the case of 
an ambassador himself, or of a crime against the state, it clearly affords no precedent at all. 
Vattel, ubi sup. § 1 24. mentions an instance from Sully's Memoirs, v. vi. c. 1 . of a French 
gentleman in the suite of the Duke de Sully (then Marquis de Rony) ambassador in Eng' 
land, who, having committed a murder, was tried by the ambassador and some gentlemen 
of the embassy, and found guilty, and sentenced to lose his head, and afterwards delivered up 
to the English for execution — a proceeding which Vattel appears to approve, since, though 
he admits the right of trial, he pronounces an ambassador to have no power to execute a 
criminal in the country where he officiates. The case of the Bishop of Ross in the text is 
merely an opinion of the civilians consulted, for no judicial proceedings were taken against 
the bishop, who was 'sent to the Tower, and afterwards ordered to depart the kingdom. 
5 Sta. Tri. 501, 502. Similar instances of restraint and dismissal (but none of punishment)^ 
have occurred from the earliest periods of our history down to the seizure of the Count 
Gyllcnberg the Swedish minister, and his papers in 1716 (see them collected, 5 Stat. Tri. 492.); 
and they fall strictly within the principle of prevention, as stated above from the writers on 
the law of nations. Even Cromwell himself, when his life was conspired against by the French 
minister De JBas, who refused on the ground of privilege to answer interrogatories of the 
council, contented himself with ordering the minister to depart the kingdom in forty-eight 
iiours (see the case stated from Wicquefort and Thurloe in 5 Sta. Tri. 512.), as Queen Elixa- 
beth had done in the case of a similar conspiracy. See Camden, Eliz. Ann. 1587.|| 

If A. is sent as ambassador of the king of Morocco to the Slates, 4 Inst. 152. 

and by them accepted as an agent, and there being war betvi^een p^f,"^Tf ^ '" 

the king of Morocco and the king o^ Spain, the king of Morocco bytheCh'S 

makes a commission to A. to take SjJaniards, and their goods ; Master of the ] 

and 



188 AMBASSADORS. 

Rolls, and the and the king of England grants him letters of safe conduct as a 
Judge of the public minister, and the States license him to levy men, to furnish 
Admiralty, up- gj^ipg^ ^.^, . ^nd there being a league between England and Spain 
t°o"them byX and England and the States, and war between Spain and the 
Lords of the States, A. takes at the Canaries a Spanish ship laden with goods. 
Council upon and by stress of weather is driven to Plymouth, he shall not be 
the prayer of ^^.j^j ^ ^ pirate here {a) ; for by the law of nations an ambas- 
tSoMo^'"' saJor «"gl^t to be safe and sure in every place. (Z;) 
proceed ajrainst him as a pirate upon the stat. 28 H, 8. c. 15. Roll. Rep. 175. S. C. cited. 
5 Bulst. 27,28. S. C. cited, (a) But per Roll. Rep, it was agreed by the civilians, that 
he ought to proceed civilithr for the goods, because in solo amid; and 3 Bulst. 29. A 
suit beinf in the Court of Admiralty against several merchants that had bought goods, the 
civilians held, because they were bought in solo amid, proceeding might be for them in 
the Court of Admiralty ; and it is said, that accordingly the court denied a prohibition : 
But, per 4 Inst. 154. though this was the opinion of some of the civilians in Palache's 
case, yet the contrary had been resolved, 2 Jac. 1. ||(5) But Pallache's case seems to have 
been decided on the ground that, whether he were an ambassador or not, his acts did not 
amount to piracy, because there was enmity between his master the King of Morocco and the 
kin* of Spain, and one enemy cannot be a felon for taking the goods of another enemy.|| 
4 Inst. 15-5. If a man that is banished is sent ambassador to the place from 

|j(c) But it IS which he is banished, he cannot be detained or offended there, (c) 
clear that the ^ 

sovereign of such individual might refuse to receive him as an envoy; and if he afterwards 
came into the country, he might be dealt with as a subject. In France, the government 
refuses to admit native subjects as ministers of foreign powers. Vattel, b. iv. c. viii. s. 112,; 
and in 1681 the states-general oi Holland passed a decree, refusing to receive as ambassador 
or minister any native subject, except on condition of his retaining his character of subject, 
both as to civil and criminal jurisdiction. Bynkershoek, de Foro Legatorum, c. xi. And 

1 believe the practice of the British government is against receiving native subjects in such 
capacity; it seems they refused to receive Sir B. Thompson Count Romford, as minister 
from the elector oi Bavaria. 5 Sta. Tri. 504, If a sovereign, however, does admit such sub- 
ject as an envoy, and without any condition expressed, Vattel, ubi supra, considers that his 
character of sulject is suspended, and that he is entitled to all the immunities of an am- 
bassador.|| 

2 Vern. 317. A bill was exhibited in Chancery against one, then ambassador 
l*ilkington v. at the court of Spain : an order was obtained, that all proceedings 
Stanhope. should cease until his return from his embassy ; and, on motion to 
was'beld trea- discharge the order, it was agreed on debate, that a protection 
son to kill the lies for an ambassador, quia prqfectwnis, or quia moratwus, and 
king's am- that at law he may cast an essoin for a year and a day, and may 
^'Tnst'T ^e ^^^^^"^^^^^ renew it if occasion continues ; and the court ordered 
Co. Lit. 130. t'^^ proceedings to stay for a year and a day, unless the defendant 

should sooner return into England. 
4 Inst. 153. It a foreign ambassador (being ^;ro-n\r) committeth a crime 

Mollov, b. I which \s contra jus gentium, as treason, felony, adultery, <^c. he 
Same rule ^°^^^ ^^^^ privilege and dignity of an ambassador, and may be 
cited. Roll, punished here as any othr private alien, and is not to be re- 
R, 175. Same manded to his sovereign but of courtesy, id) 
rule agreed by 

thcciviliaus. So,3Bulst.28. Hawk. P. C. 51. S. P. Post. Cr. L. 187,188. [In the case of the King 
agamst Guerchy, the attorney general, under the direction of the Court of K. B., grantetl 
a noli proscqxa on an indictment against the French ambassador for an attempt to assassinate 
lA-D'Eon. It does not appear from the report whether this direction was given upon the 
naked ground of the defendant's protection from his character as ambassador, or whether the 
judgment of the court were not influenced by the special circumstances of the case, which 
induced a suspicion that the prosecution wa"s a cross calumny upon the defendant, and 
instituted and kept on foot merely for the purpose of defaming him. 1 Black. R. 545.] 
11(a) See note on this subject, suprh^ p. 186.|| 

So, 



I 



AMBASSADORS. 189 

So, upon contracts which are good Jure gentium, he must answer. 4 j^gj j^^ 

But in Molloy, b. i. c. x. § 16. it is said, that most certainly by the civil law, his moveables, 
which are accounted an accession to his person, cannot be seized on as a pledge, or for pay- 
ment of debt, though by leave of the king or state where he resides ; for all coercion ought to 
be far from an ambassador, as well that which touches his necessaries as his person : if, there- 
fore, he hath contracted a debt, he is to be called upon kindly ; and if he refuses payment, 
letters of request are to go to his master, so that the same course may be taken with him as 
witli debtors in another territory ; and notice is taken of the opinion of my Lord Coke, which 
seems to the contrary; and 3 Bulstr. 28. it is agreed by the civilians, that the person of an 
ambassador cannot be arrested. [An ejectment brought, and left at the house of the 
ambassador, conceived no breach of privilege in the case of Mons. Colbert for York-house. 
M. 28. Car, 2. B. R. Molloy, b. i. c. x. $ 15. in margin.] ||It is not very clear what Lord 
Coke, in the passage in the text, intends by contracts good jure gentium. All the authorities 
on the law of nations, and the almost universal practice of European states, pronounce public 
ministers free from civil proceedings for debts and contracts, ,&c. in the ordinary courts, 
unless in case of ministers trading. See Grotius de Jure B. et P. lib. ii. c. xviii. § 9, 10. 
Bynkershoek de Foro Legatorum, ex. xiv. Vattel, b. iv. c. viii. And this was the rule of our 
common law before the statute of Anne, which is only declaratory. Com. Dig. Ambassador (B). 
Ca. temp. Talbot, 280.|| 

But if a thing be only malum 'prohibitum by act of parliament, 4 Inst. 155. 

private law or custom of the realm, and not malum in se jure gen- Molloy, b. i . 

tium. nee contra jus "entium, an ambassador residing here shall ^" ^' ^\ 
' u o ' o same rule 

not be bound by it. cited. Roll. 

R. 175. The same rule agreed by the civilians. |jLord Cohe, in the passage in the text, must, 

it would seem, be understood to mean that an ambassador is not amenable to the ordinary 

tribunals of the country for breach of mere positive institutions ; for that he is bound by them, 

and held by the jus gentium to observe them, clearly appears from the writers on that law. 

Vattel lays it down that his independency does not excuse him from conforming to the laws 

and customs of the country in all his external actions, so far as they are unconnected with the 

object of his mission and character; and he instances the cases of prohibitions to pass in a 

carriage near a powder magazine, or over a bridge, or to inspect the fortifications of a town, 

which an ambassador is bound to respect. Vattel, b. iv. c. vii. § 95.1| 

And now by the 7 Ann. c. 12. it is declared, " that all writs ^ p^^^ ^ j^ 
" and processes that shall at any time be sued forth or prose- (qj a certifi- 
*' cuted, whereby the person of any ambassador, or other public cate that the 
" minister of any foreign prince or state, authorized and received person was a 
*' as such by her majesty, her heirs or successors, or the do- n^^ooj^^^" ' 
** mestic servant of any such ambassador (a), or other public Barnes, 370. 
" minister, may be arrested or imprisoned, or his or their goods On motion to 
" or chattels [b) may be distrained, seized, or attached, shall be supersede a 
" deemed and adjudged to be utterly null and void. t'his'^rtatute 

the court held, that it was not necessary to shew that he actually lived in the house, but 
that he must shew the nature of his office, that the court may judge of it; also that he is 
not such a one as comes within the de!=cription of any of the statutes against bankrupts. Fitzgib. 
200. 2Stra. 797. Ld.Raym. 1524. Ca. tem. Hardw. 3,4. 3 Burr. 1677. See 10 Mod. 4, 5. 
[He must also swear to the actual performance of the service. 3 Burr. 1731. But where one 
swore positively to an actual engagement as English secretary to the Bavarian minister, and to 
the actual performance of that employment, the Court of K. B. thought themselves bound to 
allow his privilege, though it appeared that he had formerly been a trader, and there were severtd 
other suspicious circumstances. 3 Burr. 1478. Lord Mansfield was clear, that an officiating 
land-waiter at the custom-house could never be esteemed a bona fide domestic of a foreign 
minister. I Burr. 401. Nor can a purser of a man of war. 3 Wils. s.^. Nor a trader residing 
at his own house, his supposed master being abroad. Barnes, 374. Nor can an ambassador 
take one into his service for the purpose of screening him from his creditors. 3 Burr. 1676. 
Therefore, the person claiming privilege must swear that he was in the service at the time of 
the arrest. 4 Burr. 2015. Qu. Whether an ambassador can retain one in the character of 
physician? Ibid. A secretary to a foreign minister is privileged, though his name be not 
registered in the office of either of the secretaries of state, the statute requiring that only for 
the purpose of proceeding against the parties criminally, 3 Term 11. 79. 4 Burr. 2017. S. P. 

Therefore, 



190 AMBASSADORS. 

Therefore, though his name be not registered, the sherJiT must execute the process, notwith- 
standing the production of a certificate. 1 Wils. 20.] jjThis last passage is unintelligible ; and 
the report is nardly less so : the meaning appears to be, that if the party is not registered, the 
iheriff should execute the process, since he cannot harm himself in so doing, (h) Where a servant 
of an ambassador resided in a private house, not the ambassador's, and let out a part of it in 
lodgin'»s, it was held that his goods in suoh house were not exempt from distress for poor's 
rate, such goods being in no way necessary for the convenience of the ambassador. Novello 
▼. Towgood, 1 Bam. & C. 554.\\ 

" Provided, that no merchant or other trader whatsoever 

** within the description of any of the statutes against bankrupts, 

*' who hath or shall put himself into the service of any such 

" ambassador or public minister, shall have or take any manner 

*' of benefit ; and that no person shall be proceeded against 

*' as having arrested the servant of an ambassador or public 

" minister, by virtue of this act, unless the name of such servant 

1(c) If not ac- " b^ ^^^^ registered (c) in the office of one of the principal secre- 

tualiy a ser- " taries of state, and by such secretary transmitted to the sheriffs 

vant, though « ©f London and Middlesex for the time being, or their under 

his name be u sheriffs or deputies ; who shall, upon the receipt thereof, hang 

bnot within ** "P the same in some public place in their offices, whereto 

the act. Fitzg. " all persons may resort and take copies thereof without fee or 

soo.] « reward. 

" The persons who, by suing out writs, Src violate this law, 

** which is declared a public act, to be punished at the discre- 

** tion of the two chief justices and lord chancellor, or any two 

« of them." 

Abr. Eq. 550. One protected by the Genoese ambassador brought a bill in 

pi. 4. Good . Chancery, and was ordered, though after an answer put in (rf), to 

Jjc^r Pasch ^^^ security to answer the costs, in the same manner as if he 

1729. 2 Wil. were a foreigner {e) ; because, by the above statute, all processes 

Rep.452. And against ambassadors and their servants are made void; so that 

* \^^^ °l^^^ if the bill should be dismissed, no process could issue against 

made by my ^^™' 

Lord Cowpcr, after answer put in, Trin. 1709. between Barret and Buck, (d) But it has been 
denied in the Exchequer, even before answer, where the bill w^as for an injunction to stay the 
defendant's proceedings at law in ejectment, because the plaintiff was in a manner forced into 
this court, (viz. the Exchequer,) and did not come in originally. Bunb. Rep. 272. pi. 349. If 
the motion be before answer, the defendant will not be obliged to put one in, until the plaintiff 
give bond with a surety to the senior six clerk not towards the cause in 40/. penalty for 
answering costs. 2 Will. 452. pi. 142. Mosely, 175. pi. 89. (rf) A deposit in money will not 
be permitted instead thereof. Bunb. Rep. 35. pi. 53. 

Barbuit's [A consul, or any person acting in an office of that kind, it 

S*b. 281 seems, is not entitled to privilege. 

Ihid. llThe The privilege of a public minister is annexed to his situation ; 

SmS?" pri^. •' *^ ^^^ privilege of the state that sends him, and not that of the 
lege from ar-' Individual : he cannot therefore wave it, or forfeit it, by becom- 
r«ta« a public »ng a trader, <§-c.] 

minister, was discussed in Marshal v. Critico, 9 East, 447. and Clarke v. Critico, 1 Taunt. 
106. ; but It was not necessary to decide the point. It was however determined in Vieash v. 
Becker, 3 Maule & S. 884., on the authority of Vattel and Wicquefort, that he is not a public 
Bimister entitled to privilege from arrest on mesne process. The authority of Bynkershoek 
de Foro Legatorum «. 10. accords with this decisionlU 



[ 191 ] 
AMENDMENT AND JEOFAIL. 



(A) Of Amendments at Common Law. 

(B) The several Statutes of Amendment and Jeofail. 

(C) Whether the Statutes of Amendment extend to 

the King, or to any Criminal Proceedings. 

(D) In what Cases the Proceedings in Civil Causes 

are amendable, and the Manner thereof) as by 
amending one Part of the Record by another : 
and herein 

1. Of the Original Writ and Process. 

2. Of the Imparlance Roll. 

3. Of the Plea Roll. 

4. Of the Jury, Process^ and Nisi Prius Roll. 
6. Of the Verdict. 

(E) What Defects may be amended, or are aided after 

Verdict : and herein 

1. Of the Want of sufficient Certainty in the Plaintiff^ s De- 

claration in not setting forth his Cause. 

2. Of Reptignancy and Surplusage, 

3. Of Insufficiencxf in the Defendant^ Bar. 

4. Of immaierial and informal Issues. 

(F) Of amending the Judgment. 

(G) At what Time the Amendment must be made ; 

and therein of Records removed out of inferior 

Courts, and the paying of Costs. 
fH) Where Records defaced by Design or Accident 

will be set right and amended. 
[(I) Of Amendments in Equity.] 



(A) Of Amendments at Common Law. 

AT common law there was but little room for am^idments, Britt.s. eCo. 

as appears by the several statutes oi amendments andjeofailSi iS6. (o) This 

and likewise by the constitution of the courts ; for, says Britton, ordinance of 

the 



192 



AMENDMENT AND JEOFAIL. 



E. 1. was so 

strictly ob- 
served, that 
when Cli. 
Just. Ingham, 
in his reign, 
moved with 



the judges are to record the parols deduced before them in judg- 
ment; also, says he, E. 1. (a) granted to his justices to record 
the pleas pleaded before them, but they are not to erase their re- 
cords, nor amend them, nor record against their enrolment, nor 
any way suffer their records to be a warrant to justify their own 

misdoings, 
compassion ° j , , . 

for tne circumstances of a poor man who was fined 15s. 4d. erased the record, and made it 
6t. 8rf^ he was fined 800 marks. 4 Inst. 255. 

9H.7. I6.b. Hence it appears, that regularly at common law, neither false 

4H.6. i6.b. Xxiiinj the omission of a word, syllable or letter, or other de- 
8 Co. 157. ^^^j. ^^ variance from the approved and legal foims, were 
amendable. 

But out of this general rule there are the following excep- 
tions: I. All mistakes were amendable the same term, be- 
cause it is a roll of that term, and so in the breast of the court 
during the whole term, and then a new roll might be brought in 
the cause, and consequently the same roll may be amended. 

That part of the count which records the writ was amendable 
at common law, though of a subsequent term; because the re- 
cording of the writ was surplusage, and the judges were not to 
record against a former record. 



2 Hawk. P. C. 

192. 

« Co. 1 57. 

Hlackinore's 

case. 



8 Co. 156. b. 
7 H.6. 45. 
FWeCro.Car. 
144.Sand.517. 



(In penal ac- 
tions, while the proceedings are in paper, mistakes are amendable at common law ; and it has 
been done where several terms had elapsed since the commencement of the suit, and issue had 
been ioined. 2 Burr. 1099. So where the record had gone down to trial, and been afterwards 
withctrawn. 5 Burr. 2833.] But this is a matter of discretion in the court, and a similar appH- 
catioD has been refused. 2 Term R. 707.] ||There is no difference as to amending at common 
law between penal and other actions; 1 Stra. 137. 2Stra. 1227. 1 Wils. 256. 1 Burr. 402. 
2 Ker. 82. 3 Maule & S. 450. Nor between civil and criminal cases ; 1 Salk. 51. Ld. Raym. 
1068. 6 Mod. 285. 4East, 175. Tidd, 711, 712.(9th edit.)|| 

S H. 4. 4. 



An essoin, if the plaintifPs name were mistaken, or if it was 
made as guardian, when there was no guardian in the writ, was 
amendable at common law, because such an essoin was contrary 
to the writ, and consequently an enrolment of it would contradict 
a former writ. 

Continuances could be amended at common law; as where 
A. brought a bill against B. who vouched C. who entered into 
warranty, and pleaded to issue; a venire Jacias, and a jurat, inter 
A. and B. was put in, which jurat, ought to have been between 
A. and C. ; and because it appeared by the record of the issue, 
and the award of the venire facias, and the venire itself, that the 
684"strari39. j^^^t' ought to have been between A. and C. this was was amend- 
s Stra. 734. ed, otherwise it would have been an enrolment against a former 

record. 
8 Co. 156. In the case of the king, the writ was amendable where the 

^^q/""' ^^^ ^^^^^ was in the form, as in a quare impedit brought by the 
king, the writ was presentere instead of presentare ; and it was 
amended ; for it could not be intended that the original institu- 
tion of the court was to destroy or lessen the prerogative of the 
king. 

Tidd'a Prac. II At common law, when the proceedings were ore tenus at the 

<'9J(9^ edit.) bar of the court, if any error was perceived in them, it was presently 
theredted a"iended ; afterwards, when the pleadings came to be inpaper, it 

was 



Fitz- Amend- 
ment, 7. 61. 
Bro. Amend- 
ment, 26. 

8 Co. 1 5&. b. 
Roll. Abr. 899 
Vide for this 
Cro.Eliz. 619 
Stile, 339. 
Yelv. 1 SS. 
2 Mod. 3 16. 
12 Mod. 8 



(A) Of Amendments at Common Law, IDS 

was Uiought reasonable, that the parties should have the like in- 
(liil<reiice ; and hence it is now settled, that whilst the proceedings 
are in paper, and before they are entered of record, the court or 
a judge will amend the declaration, plea, replication, Sfc. in form 
or substance, on proper and equitable terms ; and declarations in 
actions on bail-bonds may be amended (in the Common Pleas) ♦ 
as well as any others. Amendments are commonly made by sum- 
mons and order at a judge's chambers, and now by a judge at 
Nisi Prills, or on the Circuit, by virtue of 1 G. 4. c. 55. § 5. 

The declaration may be amended even after a plea in abate- j jg^^j go 
ment of misnomer. i Ld. Raym. 

669. 7 Term R. 698. 3Maule&S.450. 2 Chitt. R- 8. 28 

Or of the statute of additions. 2 g^^^^ ^^^^ 

9 Ld. Raym. 1472.; but see 1 Salk. 50. 2 Ld.Raym. 869. 

Or of nul tiel record. i -^ji^ g^^ 

7 Term R. 447. 

Or after verdict, by increasing the damages according to the 7TermR.i32. 
truth as found by the jury, a new trial being granted to enable 2Chitt.R.2T. 
the defendant to resist the enlarged demand. 

So after a nonsuit was set aside in prohibition, the plaintiff Franklin v 
had leave to amend the suggestion. Holmes, 

Tidd's Pract. 697. 

And the Common Pleas has permitted a new trial, and amend- » Taunt, si. 

ment of the record after a nonsuit for a variance, in an unde- ^^^^- & P"'»- 

fended causP ^*^- ^ ^^'■^ 

lenaea cause. ^^^ ^ g.^^^^ ^ 

A. 896.; but see 5 Moo. 164. 2 Bro. & B. 397. S. C. contrh. 

Though in the King's Bench formerly the plaintiff was not Tidd's Prac. 
allowed to add a new count (or a new cause of action, which was <^9M9th edit.) 
considered the same,) to his declaration, after plea pleaded, or there cited, 
after the second term from the return of the writ, (that being the 
time within which he is bound to declare,) it is now ttie prac- 
tice in the King's Bench to permit a new count to be added 
after the end of the second term, when the cause of action is 
substantially the same, but not if different. And though formerly 
the Common Pleas would not allow new counts to be added after 
the end of the second term, yet the rule is now the same as in 
the King's Bench, — that they may be added, provided they con- 
tain a fresh cause of action. 

But the Common Pleas will not allow such an amendment to 
affect bail discharged ; and in an action against a sheriff's officer 6 Taunt. 483. 
for extortion on one statute, they refused to allow the addition ^ ^oo. 350. 
of counts on another statute for the same offence. 

But admitted the declaration to be amended from asstmpsil 6 Taunt. 419. 
to debt, in an action for money lost by stock-jobbing on the g^^'^^'^a'^/^' 
statute 7 G. 2. c. 8. toamendmems 

in real actions, see Tidd's Prac. 755. (8th edit.), and of Fines and Recoveries, see ibid., and tit. 
Fines and Recoveries, Vol. III. 

Before plea in general no costs are payable on amending the 
declaration, except costs of .he application; and in the King's 
Bench the declaration may be amended in matter ofjbrm after 

Vol. I. O the 



19i AMENDMENT AND JEOFAIL. fij 

(a)Ti(U|, 707. the general issue pleaded, and before entry, without paying 
(9tli edit.) costs, or giving an imparlance, (a) But if the amendment be in 
So" l!St^^° matter of substance, or after tlie general issue is entered, or a 
1 55. Tidil, special plea pleaded, the plaintiff" must pay costs, or give an 
707. imparlance at the election of the defendant. ((?») 

TiJd, 707. In the Common Pleas it is a rule, that before the declaration 

'?.Stra.950. is actually entered, the plaintiff' may amend it, paying costs, or 
giving an imparlance at his election, by order of a judge or pro- 
thonotary ; and even after it is entered, if the amendment be but 
a small matter that does not deface the roll, it is amendable, be- 
fore issue or demurrer entered, by rule of court, upon payment 
of costs, and liberty to plead with a new or further imparlance. 
(tYsTaunt.si. When amendments are made at the trial, they are made with- 
Tidd, 70S. out costs, if the action is to be defended on the merits, {c) On 
Ry. & Moo. amending the declaration in the King's Bench, after plea plead- 
fJ^T'dd "08 ^'^' ^^^^ defendant is at liberty to plead de novo (if his case require 
(e) s'sal'k.sn, it) in two days after amendment made, and payment of costs {d) ; 
518. 520. and if a rule to plead has been entered the same term, though 

®!?!f^*"lV ^'^' before the amendment, it is sufficient, otherwise a new rule must 

a Chitt.R.332. u * J / \ 
be entered, (e) 

(g) 2 Black. R. But in the Common Pleas the defendant is entitled, in all 
785. Tidd, cases on amendment of the declaration, to a new four-day rule 
^°^' to plead {g)f and he may plead de novo, if he has occasion, but he 

(A) Barnes, 275. j|g j^qj. obliged to vary his first defence, (h) 

(i) 1 Wils. 223. ^^^^ reason for not permitting a new count or right of action 
Barnes, 22. to be added after the second term, being that the plaintiff" is 

1 H. Black. obliged to declare within two terms, does not apply to pleas, re- 
f^^' /„ plications, Sfc. ; and they therefore may in general be amended 

2 Chitt. R. 28. ^^ ^"y time, so long as they are in paper, {i) 
6 Barn. & Aid. 696. Tidd, 709. (9th edit.) 

(i)Ld.Raj'm. After a demurrer, the courts would not formerly give leave to 
510. 668.679 amend without consent of the adverse party, (/r) But it is now 

1 Salk. 50. settled, that after demurrer, or joinder in demurrer, either party 
Gilb C P m. ^^ ^^ liberty to amend while the proceedings are in paper (Z), and 
(to) i Barnard. ^^^^ ^^er the proceedings are entered on record, and the de- 
K.B. 213. 220. murrer has been argued, the courts will give leave to amend, 
^' w^c;' ^' where the justice of the case requires it, upon payment of costs, (m) 
402 (5th"edit ) ^"'' ^" '^^ Common Pleas, after a party has once amended on 

2 Stra. 735. demurrer, the court will not give him leave to amend again on a 
954. 976. second demurrer, {d) On similar grounds, the courts will some- 
sCh^t^R^ times give a party leave to withdraw his demurrer after argu- 
292. Tidd nient, and plead or reply de novo, to let in a trial of the merits (w) ; 
710. (d) 2'h. but, in such cases, they will always take care that the opposite 
Black. 561. ; party is not delayed or prejudiced, (o) The giving or withhold- 
s^TaSt 515 ^"^ ^^^ ^^ withdraw demurrer is entirely discretionary in the 
2Mw).566. court, and they refused it to the plaintiff" in an action against 
(n)Dougl.385. bail, whom they are inclined to favour. (j))\\ 

452. lKcn.3S5. Say. R. 316.; and sec 2 Chitt. R. 5. (o) 2 Burr. 756. 1 East, 372. (jo) Say. 
K.n6. 1 East, 135. 5Pricc, 412. 7Dow. &Ry.41. Tidd, 710, 711. 

(B) The 



(B) The several Statutes of Amendment and JeofaiU 195 

(B) The several Statutes of Amendment and Jeofail. • 

nPHE tying down the courts so strictly not to alter their re- 
cords after the first term was found very inconvenient, and 
many judgments were reversed by the misprison of clerks, ^c. 
wherefore it was enacted. 

By 14 Ed. 3. c. 6. " that by the misprision of a clerk in any hE. s. c. 6. 
" place wheresoever it be, no process shall be annulled or dis- («) The judges 
" continued by mistakinsr in writing (a) one syllable or one construed this 

o\' J ^ ^ statute so la* 

" letter too much or too little ; but as soon as the thing is per- vourably for" 

" ceived by challenge of the party, or in other manner, it shall the suitors, 

" be hastily amended in due form, without ffivins advantage that they ex- 

" to the party that challengeth the same because of such mis- '^^""f" **_fo a 
,j • . S, "^ ^ word. 8 Co. 

P»*'sion. 158^ ^ j3^j 

they were not agreed whether they could make these amendments as well after judgment as 
before, 8 Co. 157. b., which occasioned the 9 H. 5. c. 4., by which it is declared, that the judges 
shall have the same power as well after as before judgment, as long as the record or process is 
before them; and this statute is confirmed by 4 H.6. c. 5. with an exception that it shall not 
extend to process on outlawry, or to records or processes in Wales. But according to 2 Sand. 
40. this last exception, and the like exception in 8 H. 6. c. 15. seem to be annulled by the sta- 
tute of 27 H. 8. c. 26. by which it is enacted, that the laws of England shall be used, practised, 
and executed in Wales. 

Though these statutes gave the judges a greater power than 8 Co. 157. a. 
they had before, yet it was found that they were too much An original, or 
cramped, having authority to amend nothing but processes, which nature^hereof 
they did not construe in a large signification, so as to compre- not included 
hend the whole proceedings, but confined it to the mesne process within the 
and jury process : wherefore to enlarge the authority of the ^^°^^ process, 
courts, 

By the 8 H. 6. c. 12. it is enacted, "that for error assigned eH. 6. c. 12. 
" in any records, process, or warrant of attorney, original writ, 8 Mod. 3i4. 
" or judicial panel or return, by razing or interlining, or by 12 Mod. 523, 
" addition, subtraction, or diminution of words, letters, titles, -Kajm. 65. 
" 8,-c. no judgment or record shall be reversed or annulled, 
*' but the judges, in any record, process, word, plea, warrant of 
" attorney, writ, panel or return in affirmance of judgment, may 
** amend all that which to them seems to be the misprision 
" of the clerk, (except appeals, indictments of treason, felony 
" and outlawries of the same, and the substance of the proper 
" names, sirnames and additions left out in originals and exi- 
" gents, contrary to the 1 H. 5. c. 5. and other writs containing 
" proclamation ;) and if certified defective, the parties in affirm- 
*' ance of judgment may allege the variance between the re- 
" cord and certificate, and if found and certified it shall be 
" amended." 

By the 8 H. 6. c. 15. " the judges in any records or processes 8 H. 6. c. 15. 
" before them, by error or otherwise, or in returns of sheriflfs, 
" coroners, bailiffs of franchise? or others, may amend the mis- 
" prision of the clerks of the courts, or of the sheriffs, coroners, 
" their clerks and other officers whatsoever, in writing a letter 
" or syllable too much or too little.'* 

02 As 



196 



AMENDMENT AND JEOFAIL. "Al 



H(rt)The above As these statutes {a) extended only to what the justices should 
are strictly interj^ret the misprision of their clerks arid other officers, it was 
speaking the found, by experience, that many just causes were overthrown 

amcndmen?r ^""^ '^''^"' °^ ^^^^\ "°' ^^"^^^^ ^^ ^"^ ^^ ^'^"^^^ statutes, though 
the rest coin- they were good in substance : wherefore, for further rehef of 
inencing with suitors, 
52 H. 8. c. SO. 

are statutes of jeofails. 1 Saik.31. They extend to penal as well as other actions. 2 Stra. 
1227. Dougl. 114. 1 Marsh. ISO. 2 Chitt. R. 25. ; but not to criminal cases. lSalk.51. 
2 Ld. Rayin. 1307.; nor as it should seem to process in inferior courts. Willes. 122. ; but see 
Mr. Durnford's note. Ibid., and Tidd, 712.|| 

32 H.8. c. 30. The 32 H. c. 30. enacts, " that if {b) any issue be (c) tried (r/) 

On this statute « by the oath of twelve men, for the {e) party plaintiff or de- 

a careful and « ^andant, Of for the party tenant or defendant, in any courts 

has the follow- " ^^ record, judgment shall be given, any mispleading, lack of 

ingnotes.rufc " colour, insufficient pleading, or jeofail, any miscontinuance 

Danv. Abr. « or {g) [h) (/) [k) discontinuance or (/) misconveying of {m) [n) 

352. (p) But « process, misioining of the issue (o), lack of warrant of attorney 

vet Bn 1SSU6 'JO^ . • * *^ 

upon the vi et *' o^ the party {p) against whom the issue shall be tried, or other 
armis is not " negligence of the parties, their counsellors, or attornies, had 
within the act; " or made to the contrary thereof notwithstanding; and the 
one^^oined " judgment shall stand according to the said verdict, without 
upon the spe- reversal. 

cial matter alleged. Cro. Jac. 599., and vide Sand. 81, 82. (c) But if in replevin the plaintiff 
is nonsuit after evidence, and the jury assess damages for the avowant, this is no trial within the 
act; for the inquiry of the jury is only in nature of an office of inquest. Cro. Eliz. 339. ad- 
judged, 412. adjudged, and vide Gouls. 49. Hob. 69. (d) So that an issue upon md tiel record 
IS not within the act. 11 Co. 8. a. Cro. Jac. 304. (e) In trespass against A. and B., J. pleads 
not guilty, and B, confesses the action, and a writ of enquiry is awarded upon the roll, but after 
quoad B. there is no continuance entered, and after the issue is found for the plaintiff, admit- 
ting there is a discontinuance qtioad B., yet it is aided by the statute ; for B. was party to the 
original, and is privy to the verdict, being liable to the damages. Sir John Haydon's case, 
1 1 Co. 6.b. adjudged. Roll. R. 31. adjudged, and vide Cro. Jac. 304., and vide Cro. Car. 313. — 
But an issue between the demandant and vouchee is not within the act. And Kelw. 207. b. 
5 Co. 36. b. 11 Co. 6. b. ; butter Hob. 281. this opinion is questioned, it not being said party 
to the original, (g) If as to part the defendant joins issue, but says nothing as to the rest, and 
this issue is found for the plaintiff, he shall have judgment. Gomersal and Gomersal, 1 1 Co, 6.b. 
2 Leon. 194. Godb. 55. So 2 Roll. R. 161. Cro. Jac. 353. Hob. 187. 3 Lev. 59. ; and vide 
Gouls. 109. Bulstr. 25. Cart. 51. — But if the matter is pleaded to the whole, though in fact 
but m answer to part, this is a bad plea, and not helped by the statute. Hardr. 331. (h) This 
extends as well to those on the part of the plaintiff as on the part of the defendant. 2 Roll. 
K. 161. (t) Discontinuances after, as well as those before, verdict are within this act. Cro. 
Ehz. 489. Cro. Jac. 528. ; and vide Cro. Car. 256. Cro. Jac. 211. Ci o. Eliz. 320. (k) Dis- 
contmuances are helped by tlie statute, but not imperfect verdicts. 2 Leon. 1 96. Cro. Eliz. 
^^Z" °^'^:^^' 5 Lev. 55. (I) But if upon an information of usury the court awards a 
subpoena against the defendant, this is not a misconveying, but a disorderly process, and not 
aided by the statute. Topliff and Waller, And. 48. adjudged. Kelw. 2 14. adjudged, and there 
said this 13 no more helped by the statute than if in ejectment the court should award sl petit 
cape, or in a real action a distress or attachment ; for such disorders were never intended to be 




place, &c. were not aided by this statute. r«fc Cro. Eliz. 468. Gouls. 58. Winch. 69. 4 Leon. 
85. LT0.Jac.647. Lit. R. 365. Moor, 91. pi. 212. Kelw. 212. 5 Co. 56. b. {m) But if 
tnere De any delect in an original, or in the return thereof, it is not helped by this act. Kelw. 
f \irf { '^' ^"^ i^ ^ dutringas is awarded where it should be an habeas corpora. Savil. 37. 
W ytac Leon. 175. Cro. Eliz. 145. 153. where the entry was, that the defendant obtulit se 
per Utgguu attor. tuum, without shewing his christian name; and it was argue<l that it was 

helped 



(B) Tiie several Staliiies of Amendment and JeqfaU, 197 

» 

helped by this statute; and in Cro. Eliz. 15.5., it was said, that if there were any warrant of 
attorney, and his name appears, then it may be amended by it. But for this vide Roll. Abr. 
289. Leon. 175.; and vide 18 Eliz. c 14., by which a provision is made against the want of 
any warrant of attorney, {p) But if the judgment is not given upon the verdict, it is not 
within the act; as in debt against an heir uj on the bond of his ancestor, he pleads riens per 
descent, except twenty acres in D., and the plaintiff" replies he hath more in 8., upon which 
they are at issue ; and it is found for the defendant, but the plaintiiF takes judgrneut upon the 
confession of the assets. Molineux and Molineux, Yelv. 169., reversed by reason of a discon- 
tinuance. Cro. Jac. 256. ; reversed accordingly, and said the statute must be intended where 
the verdict is the occasion of the judgment; and vide Cro. Jac. 211. Cro. Eliz. 359. 412. 
[N. B. This last point was determined on the statute of 18 Eliz. c 14.] 

This statute, though much more extensive than the others, 
and though it very much enlarged the authority of the judges in 
amendments in mistakes, yet it remedied no omission but one, 
which was the party's own neglect in not filing his warrant, 
which should not after verdict prejudice the right of the party 
that had prevailed ; therefore to remedy the omissions which 
the prevailing party might have been guilty of, as well as the 
other side. 

By the 18 Eliz. c. 14. it is enacted, " that after verdict given is Eliz. c. 14. 
*' in any action, suit, bill, plaint, or demand in any court of (a) But if in 
*' record, judgment (a) thereupon shall not be stayed or re- trespass 
*' versed for want of form touching false Latin or variance from ^^ ^ j' '' 
" the register, or [b) other faidts in form, in any writ original pleads' not , 
" or judicial, count, declaration, plaint, bill, suitor demand; guilty, and it is 
" or for (c) (d) want of any writ (<?) original or iudicial, or found for him, 
tc \ c r \ n\ ' ' c \ / -N • ax • ,. I but agauist the 

" by reason or (g) any {/i) imperrect or (?) insulticient return other two 

" of any sheriff' or other officer, or for want of any warrant of there is ju'dg- 
*' attorney (k), or for any fliult in process, upon or after any ment by de- 

*' aid prier and voucher." ^""1^' the want 

^ . 01 an origmal 

may be assigned for error ; for the verdict being found for A. he is out of the case, and it is as 
if the action had been brought agaiuot the other two only ; but if the verdict had been for the 
plaintiff*, the want of the original quoad the other had been cured. 1 Lev. 210. (b) But the omis- 
sion of vi et armis in a declaration of trespass is substance, because that is the inducement for 
the king's fine. Cro. Car. 407. March, 140. Cro. Jac. 445. 526. 556. ; but t)2f?e Cro. Jac. 130. 
2 Roll. R. 285. — So is the assignment of u breach upon a recognizance for good behaviour. 
Cro. Jac. 412. (c) Leon. 30, 51. Fw/^ where the original was determined and not revived, 
(rf) An ill writ in substance, or a good writ which warrants not the declaration, is not aided by 
the statute. Cro. Eliz. 722. Gouls. 126. Yelv. 108. 209. Sid. 84. 5 Co. 37. b. 5 Bulstr. 224. 
Roll.R. 452. — When the variance is such that it shall be taken as no original. Cro. Eliz. 204. 
Hob. 251. Cro. Jac. 654, 655, Cro. Car. 327. Cro. Eliz. 286. 3 Mod. 156. 10 Mod. 318. 
568. 1 1 Mod. 68. pi. .3. 171.250.240. 12 Mod. 235. Fitzg. 96. 2 Roll. R. 382. 5 Co. 37. b. 
— But not so where the vicious writ is certified to be the writ upon which the proceedings 
were, and that there is no other. ' Cro. Jac. 185. 479. 664. 675. Palm. 428. Brown. 96, 97. 
Cro. Car. 272. 28 1. Jones, 304. Latch. 1 1 6. Yelv. 109. — But where it appears there was 
a good original, no averment shall be taken that the proceedings were on the vicious one. 
Cro. Jac. 597. Palm. 428. — And in ejectment, where the declaration recited the original to be 
summwtitus est, there being none upon the file, the court would not intend a vicious one; but 
that there was a good one, which is lost ; and that the plaintiff''s clerk mistook in the recital 
thereof. Redman and Edolph. Sand. 317. JlNo advantage can now be taken of a variance 
between the original and the declaration, for the court will not grant oyer of the original, 
(Ford v. Burnham, Barnes, 340. Boats v; Edwards, Doug. 227.); nor will they set aside pro- 
ceedings for irregularity on the ground of such variance. Spalding v. Mure, 6 Term R. 365. 
And as to a writ of error for a defective original, the Master of the Rolls will grant a new 
original or order an amendment. Carr v. Shaw, 7 Term R. 299. Deshons v. Head, 7 East, 
583. Murray v. llubbart, 1 Bos. & Pull. 645. Gray v. Sidniff", 5 Bos. & Pull. f;45. 1 Saund. 
517. a, b. (5l1i edit.)|| So the want of a venire, distringas, tj-c. is aided, but not a vicious one ; 
and where a vicious one shall be taken as one, vide Cro. Eliz. 467. Owen, 59. Moor, 465. 

O 3 Noy, 



198 AMENDMENT AND JEOFAIL. 

Not S7. Moor, 684. pL 944.; and vide Cro.Eliz. 215. 257. 359. 422. 435. 781. Cro. Jac- 
65 162.396. Cro. Car. 90. Moor, 402. pi. 535. 623. pi. 852. 696. pi. 967. Godb. 194. 
Leon. 329. Bul8t.l30, 131. sBuUuiSO. Brownl. 78. 97. Yelv. 69. Roll. R. 22. Stile, 
8 483. March, 26. 2 Roll. R. 285. MThe want of a bill on the file, which is in the nature 
of an original, is aided by the eauity of this act. Hob. 130. 134. 264. 282. Jones, 304. Cro. 
Car. 282. Stile, 91. ; and Cro. Jac. 109. to the contrary is not law. — Qucere of the want of a 
plaint in inferior courts ; but, however, an erroneous plaint is not helped. Cro. Jac. 108, 109. 
Stile 115. Roll. R.338. (g) But if there be no return, as if the writ be album breve, or the 
name of the sheriff not indorsed, this is not helped. Roll. R. 295. 5 Co. 41. Cro. Eliz. 310. 
509. Yelv. 110. Cro. Jac. 188, 189. (h) Vide Stile, 91. 2R0II.R.247. In the return of the 
venire, the words quUibet juratorum per plegiat. were wanting; and Cro. Jac. 534., per curiam, 
It was held not as a blank or no return, but as an insufficient one, and helped. 2 Roll. R. 87. 
adjudged, because by the appearance of the jurors it was salved, and said it was not like Dr. 
Hussey's case, where pledges where wanting upon an original, which vide 3 Bulst. 275, 276, &c. 

Roll. R. 445 447. Cro. Jac. 414., where it is said, that not finding pledges upon an original 

is merely the neglect of the party, and so not helped. — If a venire is awarded to the coro- 
ners and returned by two of them only; whereas at the time of the award and return thereof, 
there were two more ; this is only a mis-return and aided. Lamb and Wiseman, Cro. Jac. 383. 
adjud<Ted. Hob. 70. adjudged; and yet if one sheriff of London makes a return without the 
otner^this is not helped, being no return at all; for they make but one officer, and the court 
knows that in one sheriff there is two persons. Hob. 70. Qm. Of this reason ? (i) Upon the 
return of a venire de viedietale linguce, it did not appear which were denizens, and which aliens. 
Cro. Eliz. 841. per curiam. It is an insufficient return, and aided by the statute. — Upon the 
ccmre twenty-three only were returned, but the habeas corpora was awarded against the twenty- 
three and A., and eleven of the other and A. were sworn, and tried the cause. Fines and 
North, Jones, 302. adjudged, it was not helped ; for A. was not returned by the sheriff. Cro. 
Car. 278. 5 Co. 36, b. 37. a. Cro. Eliz. 1 94. Brownl. 274. Jones, 557.; and vide Sid. 66. 
— So if the trial had been by eleven of the twenty-three, and one of the tales de cireumstan- 
tibus. Sankill and Stocker, Cro. Car. 223. adjudged per curiam cont. Croke. Jones, 245. ; but 
vide Brownl. 274., where it was adjudged according to the opinion of CroJce. Vide Latch, 54. 
But if twenty-five are returned, and the twenty-fifth is sworn, and tries the cause, it is not 
helped, because a mis-trial. Cro. Jac. 647. ; but if tried by twelve of the other, it is helped. 
Cro. Jac. 647. This was before forty-eight were returned on the panel, {k) In a scire facias 
upon a recognizance against th« heirs and ter-tenants of the conusor, the sheriff returns J. S. 
ter-tenant, but says nothing as to the heir, and J. S. pleads to issue, and it is found against him. 
Cro. Car. 295. adjudged by three judges against Croke, that quoad the heir, there being no 
return, it is not helped by the statute; but, per Croke, the defendant having pleaded to issue, 
and that being found against him, he shall not now take advantage of the heir's not' being 
returned summoned ; and Cro. Car. 512, 315. it was adjudged for the plaintiff) because quoad 
the heir, it was only a discontinuance, which is aided by the 32 H. 8. c. 30. Jones, 319. 
adjudged. \\{k) And a variance in the name of the plaintiff between the warrant of attorney 
and the declaration, is no ground of error. De Tastet v. Rucker, 3 Bro. & Bing. 65.|| 

2 Sand. 258. These statutes extended only to the courts above, but the 

subsequent statutes extend to all courts of record, and remedy 
several defects and omissions not included in the former. 
21 Jac. I.e. 13. By the 21 Jac. 1. c. 13. it is enacted, "that after verdict 
(rt)Sid.6i. It for plaintiff or demandant, defendant or tenant, baily in 
(ft) Cro. Car. « • 1 • • -i ^1 • ^ • 

17.162.284. assize, vouchee, praiee m aid, or tenant by receipt, in any 

480. Jones, " action, suit, bill, plaint or demand, in any court of record, 
395. Stile, " judgment thereupon shall not be stayed or reversed for any 
Ua^Tn°67^ " variance, in form only, between the original or bill and the de- 
(c)This statute " claration, plaint and demand, or for lack of the averment of any 
aids not, un- " life («), so it be proved the person living, or because the venire, 
less the venue " habeas corpora or distringas was awarded to a wrong officer 
sevcrarSces " "*■*"" ""^ insufficient suggestion, or {h) for that the visne is 
and one of * " '" (^^ some part mis-awarded, or sued out of more or fewer 
those places is " places than it ought to be (</), so as some one place be right 
truly named. « named, or for mis-naming any of the jurors in surname or 
Sid. 20.— But « addition {e\ in any of the writs, or returns thereof, so as they 

« be 



(B) The several Statutes of Amendment and Jeofail, 199 

** be proved to be the same as were meant to be returned ; or for if it arises 
" that there is no return upon any of the writs, so as a panel j*^'" ^^^u „i 
*' be returned and annexed thereto ; or for that the sheriff or in several " 
" other officer's name is not set to the return of such writ, so as counties, and 
" it appear by proof the writ was returned by tiim ; or for that ^^ '^ tried by 
" the plaintiff' in ejectment (^), or other personal action, being hef, i o'l"* 
" under age, appeared by attorney, and the verdict passed for 122. per Hale. 
" him." (d)Bytheopil 

nion of" the 
greater part of the judges, where, by particular custom, a trial was to be de vicinet. of the four 
wards next adjoining, and the venire is awarded de vicinet. of two of them only, it is helped by 
the statute. 2 Sand. 258. But Sanders dubitavil, whether it should extend to aid any pro- 
ceedings except such as were according to the course of the common law. (e) But this 
extends not to any mistake in the christian name. Cro. Car. 202. [[See Willes, 488. 12 East, 
6 Tanut. 229.460.11 (g) Stile, 216.* 2\S. jjer Ro/leC.L If the party appear by attorney, 
where he ought to appear by guardian, it is error, and not helped by this statute. Danv. Abr. 
2 V. tit. Error, fol. 12. pi. 13., and Roll. Abr. 1 v. 747. pi. 13. S. C, where he says the judg- 
ment was reversed, because the party plaintiff appeared in person. See 2 Sand. 212, 213. 
It seems the general opinion, that when the plaintifi" appears by attorney, unless it is pleaded 
in abatement, it is cured after verdict for him, by the stat. 21 Jac. 1. c. 13. the words being 
express. The cases in the books contra (except that in Stiles) were before the statute. ||If an 
infant defendant appears by attorney the court will, at the instance of the plaintiff', compel an 
amendment of the appearance by substituting a guardian. Hindmarsh v. Chandler, 7 Taunt. 
488. ; and although an infant defendant against whom judgment has been given may assign for 
error that he appeared by attorney, yet if judgment be given in favour of ^an infant defendant, 
the plaintiff cannot avail liimsclf of the infant's appearance by attorney as a ground of error. 
Bird V. Pegg, 5 Barn. & A. 4 is, [j 

The main design of this statute was to help any mistake in the 
jury process, but there were several things still to be supplied, 
and several others to be adjudged from, which were always con- 
strued to be matters of substance, and consequently not aided by 

any of the former statutes: wherefore the 16 & 17 Car. 2. was l Vent. 200. 
made, the act which Twisdeii called The Omnipotent Act. 

By the («) 16 & 17 Car. 2. c. 8. it is enacted, "that after ^^''^' 'J^;""'r' 

" verdict in any action, suit, bill or demand, in the courts of f/ct was only"* 

" record at Westminster^ county palatine of Chester or Durham, forthreeyears, 

" or of the great sessions in Wales, judgment thereupon shall but is made 

" not be stayed or reversed for want of form or pledges, sheriff's P^'^Sf lj!!^p^"'i 

" name, returned upon the original, or for want of pledges upon 2."c.4r%)But 

" any bill or declaration, or for want of a ■prafert in atria of any this extcncU 

" deed, or of letters testamentary, or of administration, or for not to any 

** the omission of vi et armis, or contra pacem, or for the mistake ^"al >n an im- 

" of the christian or surname of either party, sums, day, month ^od^sT^Tyo! 

" or year, in any bill, declaration and pleading, being right in 2 Mod. 24. 

" any writ, plaint, roll or record preceding, or in the same, to (c) In debt 

** wjiich the plaintiff might have demurred and shewed the same }'P°" a bond 
£4 r c r 7 , . -^ 7 ni London.. 

lor cause, or tor want or hoc paratus est verificare, or hoc para- conditioned 

** tus est verif care per recardiim, or prrout patet per r''cordum ; or for the pcr- 

" for that there is no right venue ; so as a trial was by a jury of formance of 

" the (h) proper county or plac'^. (c) where tlie id) action is laid ; t;ovenants,onc 
., L II . 1 -^ ' rt ^ 1. e ' L -, of which was 

nor snail any judgment after verdict, confession by cogncnnt ^^^ jj^^ cyoy. 

" actionem or relicta nerificatione, be reversed for want of a mentof^/irjifi- 

*' misericordia or a capiatur, or because one is entered for the ^^dk, in the 

" other ; nor for that ideo conccssum est per curiam is entered for ^'^If^jf ^^ j" 

" id<io consideraium est, &c. or for that the increase of costs after the delwdant ' 

04 " verdict 



«00 AMENDMENT AND JEOFAIL. 

jieadod i)cr- " verdict in an action, or upon a nonsuit in replevin, are not 
fbniiancc " entered to be at the request of the party for whom the judg-* 

fjenerallyjand (c ment was ^iven, nor by reason that the costs in any judgment 
re'^lied that " whatsoever, are not entered to be by consent of the plaintiff; 
the Eiirl of Ji. " anJ that all such omissions, variances and defects, and (e) odier 
having title by ** matters of like nature, not being against tlie right of the matter 
grant, &c. en- « of the suit, nor whereby the issue or trial are altered, shall 

tered, mid „ ^ amended where such judgments are or shall be removed by 
outtcu nun ;.»,,*'" 
find the do- " writ of error. 

fendant pleaded the Earl of iV. had no title; and thereupon issue was joined, and tried by a 
vune oi Skruh-walkf&nd found for the plaintiff; and though no visne could arise of the \valk, 
and it could not be intended n vill, being only collaterally alleged as a thing granted, and not 
as a place where any fact was done; yet being tried by a jury of the county where the matter 
of the issue arose, it was adjudged for the plaintiff by three judges con. Twisden, who said it 
was not within the words; and being a new law, it should not be taken according to the intent, 
against the words; and after, error was brought; but the parties agreed, the defendant making 
the plaintiff satisfaction. Lev. 207. Sid. 326. adjudged per totam Cur. prcster Twisden, 
though objected, the action being laid in London, the issue should have been there tried, unless 
•orae other place had been shewed in the record; and vide \ Lev. 122. (rf)The plaintiff 
declared that the defendant apud London said of the plaintiff, that he had stolen plate at 
Oxford ; and the defendant justified, that he did steal plate at Oxford, per quoad he spoke the 
words at London ; and the plaintiff replied, de injurid sua propiia, &c. and thereupon issue 
was joined, qlfd tried in London, and found for the plaintiff; and though it was adjudged, that 
the only point in issue was, whether the felony was committed, which was triable at Oxford; 
yet the plaintiff had judgment. Croft and Boite, Sand. 247, 248. by three judges, who said, 
that the issue being tried by a jury of the proper county, it was within the express words of 
the statute; but Twisden /or^men^ con^.; and by the reporter, this judgment was given, not 
only against the opinion of Twisden, but of several others, as he was informed; and being of 
counsel with the defendant, he agreed the meaning of the statute was, that the issue should be 
tried in the proper county where it arises, else it would be impossible, by any plea, to remove 
the trial from the county where the action is laid. Raym. 181. adjudged, that it whs helped 
by the statute; but said, that the defendant might have demurred upon it. 2 Keh. 496. 
adjudged, Vent. 263. cited to be adjudged; so Adderly and Wise, 2 Lev. 164, 165. adjiulgcd. 
Vent. 263. cited, and vide Raym, 392. where the like point was in question, et adjorn.; 
eo, 2 Jones, 82. et adjorn. And in the case of Jenning and Hunking, Vent. 263. (where the 
court said it was within the words, but not the meaning of the act; for the intention was so, 
that the trial was in the county where the issue did arise,) but in regard of these precedents 
cited, they would not stay judgment ; but by the report of this last case, 2 Lev. 121. it does 
not appear how the judgment was; but Hale C. J. there said, the meaning of the statute was, 
if the issue was tried in the county where the matter thereof arose; for it is not reasonable to 
believe the parliament intended to alter the whole course of trials, and to have things tried in 
foreign coimties, et adjomatur ; and by the report of the same case, 3 Keb. 350. 371. 509. the 
parties agreed to amend, and lay the whole matter in the county where the action was laid ; 
and said, the court inclined strongly against the judgment cited, (e) Raym. 398. 

Carth.66. The above statutes beuig chiefly calculated to aid imperfec- 

Skin.49. pi. 3. (^iQjjg ^i^gj. verdict, and the statute 27 Eliz. c. 5. aiding defects in 

form only on a general demurrer, it was thought advisable to 

enlarge the authority of the courts further in favour of suitors ; 

and therefore, 

4 Ann. c. 16. By the 4 Ann. c. 16. for the amendment of the law, it is en- 

Kote:Thi8 acted, " that where any demurrer shall be joined and entered 
act is said to «{ :„ .• . ••' • ™ i i • i in 

have been ^^ ^"^ action or suit m any court of record, the judges shall 

]>cnnc<l by the " proceed and give judgment according as the very right of 

^reat I/ord " the cause and matter in law shall appear unto them, without 

fSiSiop B^r- " ^^g^'^^'^g any imperfection, omission, or defect in any writ, 

net's Hist, of " ^^'""^5 plaint, declaration, or other pleading, process, or course 

hisownXimes, ** ^^ proceeding whatsoever, except those only which the party 

p. 459. " demurring shall specially and particulaily set down and ex- 

" press^ 



(B) The several Statutes of Amendment and Jeofail, 201 

" press together with his demurrer, as causes of the same, not- 
" withstanding that such imperfection, omission, or defect might 
" have heretofore been taken to be matter of substance, and 
'* not aided by the 27 EHz. c. 5. so as sufficient matter appear in 
" the said pleadings ; upon which the court may give judgment 
" according to the very right of the cause, and no advantage or 
" exception shall be taken of or for an immaterial traverse, or of 
" or for the default of entering pledges upon any bill or declar- 
** ation, or of or for the default of alleging the bringing into 
" court any bond, bill, indenture, or other deed whatsoever. 
" mentioned in the declaration or other pleading, or of or for 
" the default of alleging of the bringing into court letters testa- 
*' mentary or letters of administration, or of or for the omission 
'* of vi et armis, et contra pacem, or either of them, or of or 
" for the want of averment of hoc paratus est verijicare, or hoc 
" paratus est verificare pa- recorduvi ,- but the court shall give 
" judgment according to the very right of the cause, as afore- 
" said, without regarding any such imperfections, omissions, and 
" defects, or any other matter of like nature, except the same 
" shall be specially and particularly set down and shewn for ■• 

" cause of demurrer." A?id, "That all the statutes of Jeofails 

" shall be extended to judgments which shall be entered upon 
** confession, fii'hil (licit, or non sum informatus, in any court of 
" record, and no such judgment shall be reversed, nor any 
*' judgment upon any writ of enquiry of damages executed 
*' thereon, be stayed or reversed for or by reason of any imper- 
" lection, omission, defect, matter, or thing whatsoever, which 
" would have been aided and cured by any of the said statutes 
" o'i jeofails, in case a verdict of twelve men had been given in 
" the said action or suit, so as there be an original writ, or bill, 
** and warrants of attorney duly fded according to the law as is 
" now used." 

II In the construction of this statute it has been adjudged, that i Stra. 7«. 
it extends to protect judgments by default, against such objec- Vandeput v, 
tions only as are remedied after a verdict by the statutes of ^?r.''» ^- ^* 
jeofails, and not against objections which are cured by a verdict z'-jI^Ws' 
at common law. 2 Stra. 955, 

Hayes v. Warren. 2 Burr. 899. Collins v. Gibbs. 

It becomes, tlierefore, necessary in order to ascertain the nature Sec Cro. Car. 
of the defects, which are aided after a judgment by default since ^?"' |^^{^ ^. 
the statute of Anne, to distinguish with accuracy between such 'i\ llaym -is? 
imperfections as are cured by a verdict by the common law, and Hitchins v. 
those which are now remedied after verdict by the several Stevens, 
statutes of jeofails. With respect to the former case it is to be 9f '^'^^' "^^l" 
observed, that where there is any defect, imperfection, or cou^h^'lbu^' 
omission in any pleadings, whe*^'ier in substance or form (a), ssgtBlackafl 
which would have been a fatal objection upon demurrer ; yet if v- Eale. 
the issue joined be such as necessarily required on the trial Jj^^°'^' ^^^' 
proof of the facts so defectively or imperfectly stated or omitted, Heij. i j^g^ 
and without which it is not to be presumed that either the judge 308. Manning- 
would direct the jury to give, or the jury would have given the to» v. Guil- 

verdict, 



202 AMENDMENT AND JEOFAIL. 

Iiin«, S. C. verdict, such defect, imperfertion, or omission is cured by the 
I Vent. 109. verdict by the common law; or, in the phrase often used upon 
Golwic^s ^^6 occasion, such defect is not nny jeofail after verdict. 
ca«c. I Salk.3G5. Crouther v. Oldficld. Com. Rep. 116. May v. King. 6 Mod. 302. Scrim- 
shaw V. Wcstlcy. 2 Ld. Raym. 1060. S. C. Holt's R. 567. 3 Wils. 275. Roe v. Hersey. 
7 Brown P. C. 555. Rann v. Hughes. Dougl. 679. Rushton v. Aspinall. 1 Term R. 141. 145. 
Spiers V. Parker. Ibid. 545. Johnstone v. Sutton. 3 Term R. 25. Nerot v. Wallace. IIM. 
147. Clark V. King. 4 Term R. 472. Bishop v. Hayward. 7 Term R, 518. 523. M'Murdo 
V. Smith. Cas.temp. Hardw. 116. Wicker v. Norris, 10 East, 359. Bowdell v. Parsons. 2 Bos 
& Pull. 265. Wiu-d V. Harris, (a) 13 East, 407. Higgins v. Highfield. That was an action for 
mesne profits ; and the declaration did not state any time when the defendant entered, but only 
that he kept the nlaintiff ejected /or a long space of time. After judgment by default, the court 
held that this omission was cured by the statute 4 Ann. c. 16., ancf seemed to consider that all de- 
fects'of form only were cured by that statute. The case of Blackall v. Heal, Com. Rep. 12. Carth. 
389. S. C. was cited in argument, where the same omission was held to be cured after ver- 
dict • but whether under the statute of jeofails, or at common law, does not appear, though 
the language of the court in giving judgment seems to lean to the latter. The case in 
13 East, 407. is, however, decisive upon this point. 

J Show. 233, As where in debt for rent, by a bargainee of a reversion, the 
234. Hitchins declaration omitted to allege the attornment of the tenant, 
V.Stevens. which before the statute 4 Ann. c. 16. §9. was a necessary 
1 Stra.78.^ ceremony to complete the title of the bargainee, and, upon nil 
Lord S. c' debet, pleaded there was a verdict for the plaintiff, such omission 
2Vin.Abr.399. was cured by the verdict by the common law; but is a fatal 
(6) It should obiection after a judgment by default, since the statute of 4 Ann. 
be observed, clQi2lh) 
that Serjeant C. i^. ^ Z. \U) 

"Williams (from whom this passage is taken) is here speaking of a conveyance of a reversion 
made previous to the statute of Anne, and pleaded after that statute, the second section of 
which extends the statutes of jeofails to judgments by default, and the ninth and tenth sections 
of which abolish the necessity of attornment. 

Hutt. 54. And this construction seems agreeable to the spirnt as well as 

Lightfoot V the letter of that statute : for it is clear that, unless the tenant 
Brightman, jj^^ jjj fv^pj. attomed, the plaintiff was not entitled to recover. It 
Suiers v ' ^^ ^^^ alleged in the declaration that the tenant had attorned ; it 
Parker. is at least as probajale that he had not attorned as that he had ; 

(fl) But it and it does not appear which is the fact ; upon what ground 
seems that ^i^^j^ ^^^^ ^^^ court presume any attornment ? The iudgment by 
not be plead- default affords none, for that only admits such facts as ai'e 
ed in any alleged. Therefore if such defects should be held to be aided 

case, for after a judgment by default, it might frequently happen that the 
itisaneccs- court would give judgment for the plaintiff, where he is not 
stance implied entitled to recover. But where a verdict has established the 
by law. Co. grant, that is a sure ground whence the court can presume 
Litt. 303. b. attornment, because without proof of it the plaintiff could not 

Plowd. 149. Yisae made out his title as bargainee of the reversion. So 

Throckmorton , ^ _ . » , . 

T. Tracey ; Where a grant 01 a reversion, a rent charge, an advowson, or 

which was on any other hereditament which lies in grant, and can only be con- 
demurrer to a veyed by deed, be pleaded, but is not alleged to have been by 
plea in bar. ^^^^ , ^^ jj- ^ feoffment be pleaded without livery (a) ; so that 

the grantee or feoffee does not shew in himself a perfect title ; 

yet, if the grant or feoffment be put in issue, and found by the 

jury, the verdict cures such imperfection by the common law. 

But such defect is a faUil objection after a judgment by default, 

for the reason ^bove given. 

Also 



(B) The several Statutes o^ Amendment and Jeofail, 203 

Also where a promise depends upon the performance of some- 2 Burr. 899. 
thing to be first done by him to whom the promise is made, p^ul*"* ^' 
and in an action upon such promise the declaration does not ' 

aver performance by the plaintiff, or that he was ready to per- 
form, and there is a verdict for the plaintiff; such omission is 
cured by the verdict by the common law, but is a fatal objection 
after a judgment by default, for the objection holds exactly the 
same as if it had been upon demurrer. 

So in an action for a malicious prosecution, it is necessary 2 Rich. 3. 

to allege in the declaration that the prosecution is at an end. 9 Hob. 267. 

The want of this averment is cured after verdict. But is fatal Naterer v. 

upon demurrer, or after a judgment by defliult : for the original j^ ^"^"sog 

prosecution may either be determined, or it may still be re- 210. Parker v. 

gularly going on ; and how can the court say which of the two Langley. 

is the fact ? But where there is a verdict for the plaintiff, it is f^^"- ^^''- ^^• 

a necessary inference that it was proved on the trial that the T^'i 

. . , •' . ^ 1 / 7 \ grave v. Uuen. 

origmal prosecution was at an end. [b) Dougl. 215. 

Fisher v. Bristow. 2 Term R. 225. Morgan v. Hughes. Skinner v. Gunton. 1 Sid. 15. Wine v. 
Ware, {b) See also 1 Bro. & Bing. 224. Dalby v. Hirst. 9 East, 473. Amey v. Long. 5 Barn. 
& Aid. 634. Pippet V. Hearn ; in which case it was held, that a count for [maliciously in- 
dicting the plaintiff for perjury without setting out the indictment, is good after verdict; but 
this, it should seem, is by the statutes of jeofails. 

But where there was any defect, omission, or imperfection, 

though in form only, in some collateral parts of the pleading, 

that were not in issue between the parties, so that there was no 

room to presume that the defect or omission was supplied by 

proof, a verdict did not cure them by the common law. As 

in the case from Croke's Reports, where the replication did 

not aver that the cattle were levant a?id couchant upon the 

plaintiff's land, a verdict in favour of the prescripion did not 

cure this defect ; for the only point in issue was the prescriptive 

right of common, and, therefore, the fact of the cattle being (a) Sec Gilb. 

levant and couchant upon the plaintiff's land, or not, was not H-C.B. (3d 

at all necessary to be proved before the jury. But as it was an \^^ /^g. 

extremely hard case, that after a cause had been tried upon the (6) i Salk. 57. 

merits, judgment should either be stayed or reversed for defects Gidley v. Wil- 

in form in such collateral matters, such defects were helped ^'»™s.S.C. 

after verdict by the statutes o^ jeofails, and are now after judg- 554. 4 J^od 

ment by default, by virtue of the statute of Queen Anne, (a) So 133. Mason v. 

where an administrator brings debt on a bond, and does not Hanson. 

allege in the declaration bi^ ixihom administration was granted, \}f^^yi,^^ 

and defendant pleads nofi est factum, and there is a verdict for ^ j j ' jg_ 

the plaintiff, the verdict does not cure this defect by the common feet, whether 

law, because it was not necessary to be proved on this issue, the '" form or 

title of the administrator not being ip question. But this defect substance, iu 

is remedied after verdict by the statute of jVo/a//5, 16 & 17 Car. 2. wi*t"^"wil is 

c 8. and, therefore, after a judgment by default since the statute of cured after' 

Anne. (6) Upon the same principle, a verdict did not at the com- verdict. 

mon law cure other defects in form, such as the want of civiner ^'^) ^' must be 
1 .... r ^1 • T .• o 1 • I ° observed, tuat 

colour, misjouung of the issue, discontinuance, 8fc. which are two of the 

helped after verdict by statute 32 H. 8. c. 30. nor the want of an instances 

original 



aoi. AMENDMENT AND JEOFAIL. 

mentioned in original or judicial writ ; nor the insufficient return of the sheriff; 

the text, which are remedied after verdict by the statute 18 Eliz. c. 14. ; 

viz. the want j^^j. ^ variance between the original writ and declaration, which 

"crfbctlorof was aided after verdict by the statute 21 Jac. 1. c. 13. ; nor did a 

an original verdict cure any immaterial traverse, the omission of a jnofert, 

writ, are ex- of vi et annis, of contra pacrm, of hoc paraius est va'ificare^ of 

presslyex- prout patet per rccordum, all which defects, with many others, 

Sutl of are helped after verdict by the statute 16 & 17 Car. 2. c. 8. (c); 

Anne, the and the benefits of these statutes is extended to judgments by 

words of default by the statute of Arme. [d) But still if the plaintiif 

which are, either states a defective title, or totally omits to state any title or 

1 ^n^riui^iml cause of action, a verdict will not cure such defect, either by 

writ or bill, the common law or by the statutes oi jeofails ; for the plaintilf 

and warrant of need not prove more]than what is expressly stated in the declar- 

attorney duly ajjop q^ jg necessarily implied from those facts which are 
fded according ', ,. •' 

to the law as stated, {e) 

is now used.'* See 1 Saund. 318. a. ; and 2 Saund. 101. r. (e) Doug. 658. Rushton v. 
Aspinall, Cowp. 825. 2 Salk. 6G2. Buxendin v. Siiarp, 1 Salk. 365. Crouther v. Oldfield, 
.•> Burr. 1728. Weston v. Mason, per Fa/<?5, J. 3 Wils. 275. 1 Term R. 141. 146. Spieres v. 
Parker, 4 Term R. 472. Bishop v. Hayward, Gilb. H. C. B. 141, 142. So, where in an action 
on the case for an injury to the plaintiff's reversion in a yard, the declaration stated injuries 
in terms which most aptly applied to the possession only, and there was no allegation that 
the plaintiff had been injured in his reversionary estate in the premises, the court, after verdict 
for the plaintiff, held, that the omission was not cured, and judgment was arrested. 1 Maule 
6c S. 234. Jackson v. Pesked. So in debt on 2 & 3 Ed. 6. c. 1. for not setting out tythes, an 
omission to state that the tythes had been payable within forty years next before the act, was 
held fatal after verdict for the plaintiff. 4 Barn. & Aid. 655. Butt v. Howard. The distinction 
is one which has been often remarked between a defective statement of a title or cause of 
action, and a statement oi a defective title or cause of action. The former is cured by 
verdict, or by the statute of jeofails ; the latter is not. 

The King v. Notwithstanding it is, as we have seen, so material to dis- 

^'ffT^ * tinguish between defects helped after verdict by the common 
looc. ^^^ ^"'^ ^y ^^ statutes o'^ jeofails, in order to apply them to 

cases of judgments by default, yet we very often find that there 
is no sort of distinction made between the two cases by many of 
our reporters and wi'iters upon the subject. In a qmire impedit^ 
the declaration alleged a seisin in the crown of the advowson, 
but no presentation. The seisin was traversed, and a verdict 
thereon for the crown. The question was, whether the want 
of alleging a presentation was cured by the verdict. The conrt 
was of opinion it was ; but Lord Hard'wicke is made to say that 
it was so cured, by virtue of the 16 & 17 Car. 2. c. 8. But it 
should seem that the report is inaccurate, because from the 
whole of Lord Hard'jcicke's argument, it is plain that the ground 
upon which the court gave their opinion was, that a presentation 
must of necessity have been proved upon the trial, otherwise the 
jury could not have found a seisin in the crown ; which is the prin- 
ciple upon which the defects are held to be cured by a verdict by 
the common law. And in this light is the case considered in the 
Black. Com. ^^^ °^ ^"^ Prius, 122. So, Sir William Blackstone in his Com- 
394, 595. mentaries states with correctness the principle upon which defects 

Sec 1 Will. are held to be aided by a verdict by the common law ; but the two 
Saund. 227. ct examples which he adduces to illustrate the principle, are both of 

them 



(C) As to the King and Criminal Proceedings. 205 

them instances of defect, aided after verdict by the statutes of 'cq. notis, (5th 

jeofails.W ^'^'•^' 

Notwithstanding the great enlargement of the power of the Carth. 158. 
judges, by the above recited statutes in amending writs, pro- 367. 520, Ld. 
cesses, Sfc. yet none of them were thought to extend to writs of I 4"^^ vr \^^* 
error ; and the rather, because such amendment would not be in ig.gg. Comb, 
affirmance of the judgment ; but it being found that defective 554, Salk. 49. 
writs of error occasioned great delay of justice. pl* 9- 

By the 5 G. 1. c. 13. it is enacted, "that all writs of error 5G, i.e. is. 
" wherein there shall be any variance from the original record, ||See Tidd's 
" or other defect, may and shall be amended and made agree- ^'•'«<^- ip^s. 
" able to such record, by the respective courts where such writ ^ edit.)|| 
" or writs of error shall be made returnable ; and that where 
" any verdict hath been or shall be given in any action, suit, 
" bill, plaint, or demand, in any of his majesty's courts of 
" record, the judgment thereupon shall not be stayed or reversed 
" for any defect or fault, either in form or substance, in any bill, 
" writ, original cr judicial, or for any variance in such writs 
" from the declaration or other proceedings." 

[By Stat, of 4 G. 2. c. 26. for turning all law proceedings into 4G. 2. c. 2G. 
English^ it is provided, § 4. that every statute o^ jeofails shall ex- ^ ** 
tend to all forms and proceedings in Eiiglish (except in criminal 
cases), and that this clause shall be taken and construed in the 
most ample and beneficial manner for the ease and benefit of the 
parties, and to prevent frivolous and vexatious delays.] 

II As to amendments of the record under Lord Tciiterden^s ^Ua-A.£^^ 

act, 9 G.4. c. 15., see tit. " Pleas and Pleading," (B)3., and „ . , 

3 Carr. & P. Ca. 485. 394. (4 id.) 22. 24. || ^'^ 4 4^, 

^/«^^ V 

(C) Whether the Statutes of Amendment extend to 
the King, or to any criminal Proceedings. 



z. 



TT has been a great question whether any of these statutes ex- Gilb. Hist. 

tend to the case of the king, either to remedy the party where C.P. 116. Vule 

lie has prevailed against the king, or the king against the party; J^Mod"? 'ig7* 

but as it has been ruled in both cases, and seems now established Pitzf'ib. 5g. 

that these statutes do not extend to the king, it will be needless 122. 263. Stra. 

to enter minutely into this enquiry; for though only indictments, ^^^^"^- ^^^• 

appeals, and informations on penal statutes are excepted in all m , ^f-^' 
a\ ^ ^ c ^rT„ ,^'- 1 1/. " I renal actions 

the st^itutes irom 8 H. 6. c. 12. yet because the first statute says are not consi- 

it shall be amended on the challenge of the party, in which the dered as crimi- 
king cannot be included, the subsequent statutes are supposed to P^^ proceed- 
be made on the same platform ; and that this exception is only Ibfe'wIth^inTlie 
ex ahundanti cauteld. statutes of 

jeofails. Cowp. 382. i Wils. 125. 

Thus in a quo laarranio quare the defendant claims a warren, Jones, 320. 
the defendant prescribes for a warren within the manor oiRidge^ ^'■<'- C"*"- ^^2. 
and the venire was awarded from the villa of liidge^ and not from 
the manor of liidgCy and a verdict for the defendant ; the court 

awarded 



206 AMENDMENT AND JEOFAIL. 

(fl)F«fcStat. awarded a new venire {a)^ because they held the king was not 
9 Ann. c. 20. within the statute of J. 1 . c. 1 3. 

& 7. [The venire i /-< 

18 now to be awarded of the body of the county, vide the stat. 4 Ann. c. 16. § 6., and 24 Cr. 2. 
c. 18. § 3. Vide head of Juries.] 

Salk.5i.pl. 14. So in an information for a seditious libel, the venire was re- 
6 Mod. 268. turnable 1 3 October^ and the distringas tested 2-t October^ this was 
R ^' ^lon^ ^ discontinuance, because not returned in the presence of the 
1472"* Mich, party ; and notwithstanding the queen had a verdict, the court 
3 Ann. The would not amend it, though such amendment would have been 
Queen v. warranted by the roll, where the distringas was well awai'ded. 

Tuchin, by 
three judges, lieiitante Gould. 

But it has been adjudged, that the several provisoes in these 
Cro. Jac.4H, statutes, which except appeals and indictments of felony, ^x. 
307 ^2 Sand.*'' ^"^ ^^^^ ^^^^X ^^^^^ not extend to any writ, bill, action or inform- 
ass! (A) But a ation upon any popular or penal statute, do not {b) extend to 
writ of ravish- those cases in which a remedy is given by way of recompence to 
ment of ward ^ party ; as upon the statute of waste, for not setting forth ty the, 
upon the sta- c -xJ ,. q 
tute of Wcstm. forcible entry, 8,x. 
2. c. 35. is within the proviso. Dr. Hussy and Moor, 5 Bulst. 275, 276. Hob. 101. 

[4 Ann. c. 16. Also by the 4 Ann. c. 16. for amendment of the law, it is 
(c) An inform- enacted, *« that all the statutes oi jeofails shall extend to all 
U "t"teaTwere' " ^"^^^ "^ ^"^ °^ ^^^^ majesty's courts of record at Westminster, 
imported be- " for recovery of any debt immediately owing, or any revenue 
tween,&c. and « belonging to her majesty, her heirs or successors, and shall 

the day of ex- <c also extend to all other courts of record." (c) 
hibitmg the m- 

formation, which was the day of the seizure, and of course would have been excluded : leave was 
therefore given to amend, by extending it to the next day. Bunb. 49. p. 80. An information 
on the act of navigation was amended, by substituting the words India goods instead o( silks; but 
the addition of other goods was not allowed, for that would have been to have made a new 
information. Id. 252. p. 327. In one case an amendment was permitted, which made quite 
a new offence ; this was in an information of seizure for importing brandy and rum in casks 
under sixti/ gallons, by making it, as to the rum in casks, under twenty gallons. Id. 334. 
p. 415. But where an indenture of appraisement was dated before the writ of appraisement, 
the court inclined to think it might be amended. Id. 58. p. 99.] 

9Ann.c.2o.$7. And by the 9 Ann. c. 20. §7. it is enacted, "that the 

Ft^it. In- (i statute for the amendment of the law, and all the statutes of 

•' ' " Jeofails shall be extended to [all writs of mandamus and] in- 

" formations in nature of a quo nxiarranto, and proceedings there- 

" on for any the matters in the said act mentioned." 
See3Carr.& ||By 9 G. 4". c. 15. Lord Tenterden^s act, the record may be 
^'r^ ^A*"p ^"^^"ded on which any trial is pending, in any indictment or 
Ca. 22. 24. 79 i^foi'Kiation for misdemeanor, when any variance shall appear^ 

between any matter, in writing or print, produced in evidence 

and the recital thereof on the record. || 



(D)ln 



(D) Where Proceedings in Civil Causes amendable, S^^c. 21)7 

(D) In what Cases the Proceedings in Civil Causes 
are amendable, and the Manner thereof; as by 
amending one Part of the Record by another : and 
herein, 



1. Of the Original Writ ajid Process. 



T 



^HE original writ is made amendable by 8 H. 6. c. 12. and 8 Co. 156. 

" other statutes, when it is not made out pursuant to the in- Cro. Eliz. g44. 
structions given to the cursitor ; and likewise in those misprisions ^o s p ' i ''* 
which appear to be vitia scripto7'is, and are not of the substance if the instruc- 
of the writ ; as where the instructions to the cursitor are for a tions were 
praecipe against Lenthorp FranJc, Melite, and the cursitor makes wrong, it is not 
the original Lentliorp Frank, Ge?ie7'oso, the writ («) shall be g"!^"! 4^* 40 
amended according to the instructions given the cursitor. j^q Qp *^ij] 

412. S. P. (a) So devisit for demisit. Roll. Abr. 198. Hob. 249. Brownl. ISO. Vacariam for 
Vicariavi, Hob. 128. were amended, because the instructions to the cursitor in both cases were 
right. [A ca. sa. amended after it had been executed, by the award of the writ on the roll. 
2 Black. R. 856. A bill of Middlesex filed as of record of 24 G. 2. when it ought to have 
been of the 25th, amended by the prcecipe. 1 Term R, 782. A bill of Middlesex, by a 
common informer in debt oiily, amended by inserting " in a plea of trespass with an ac-etiam 
in debt. 1 Black. R. 462.] 

So if instructions are given to the cursitor for drawing a writ 2 Vent. 152. 
against Westhy, and he by mistake makes it Westly, and so are all 
the proceedings afterwards, this shall be amended ; and accord- 
ingly the court ordered the cursitor to attend, who satisfying 
them that his instructions were right, they ordered the original 
to be amended in court, without any application to the Chan- 
cery, or order thence, and they amended all the proceedings 
after. 

So when there are two defendants, and the writ is praecipe to 2 Lev. 173. So 
them both, quod teneat conventionem, this shall be amended, be- ^".^'"^ i" a 
cause the instructions beginning against several, the cursitor had f^ddat instead 
not pursued them. of reddant. 

2 Saund. 38. 

A quare impedit was brought ad prcesentand. ad ecclesiam de Cro. Car. 74. 
IVatton, where it should have been advicariam ecclesia de Watton, ^"™6r and 
though this be an error in substance, the vicarage being distinct 
from the parsonage ; yet because the instruction to the cursitor 
was right, and this a peremptory writ, it was allowed to be 
amended. 

So if the party, in order to have a formedon in descender, 8 Co. 1 59. b. 
draws instructions that the land descended to him as son 
and heir of the donee, and the clerk draws the writ that the 
land descended to him as son, and omits heir, if the clerk 
shews his instructions, and will make oath thereof, it shall be 
amended. 

Also the writ was holden amendable if there. was false Latin(a), («) For a di- 
or a word that was no Latin, if it were only in the (i) form of a J'^fsity between 
writ; but if it were of the substance of the writ it could not; nolaSnTJdf 
for by the statutes the courts are allowed, where they have suffi- Lev. 2. 2' Vent, 
cient authority, to amend the form of that authority, but not to i^s. (A) There 

make 



208 AMENDMENT AND JEOFAIL. ^ 

is n diversity make an authority for themselves, by altering the substance of 

between the tl^^ ^vrit. 

ncliffcnce and 

tijc iiWience of the clerk ; for the negligence (as if he had a copy of the bond, and does not 

follow it) shall be amended ; but his nescience or ignorance in the legal form and cause of 

originals, is not amendable ; for if this were allowed, it would introduce error and barbarity 

into legal proceedings. 8 Co. 159. a. Lev. 2. 

Therefore if the writ be imaginavit for imaginatus est, or ava: 
Moor, 5. pl. 17. ^^ avicc, it shall be amended, (a) 

S. P. 'is^ Bendl. 53. S. P. cited. And. 24. S. P. cited, (a) But in Blackmore's case, 8 Co. 
159. b. hos hreve for hoc breve is held not amendable; but qtuere, et vide 2 Vent. 173. whicii 
fieems to hold otherwise. 

Lev. 2. Heath But the essential part of a writ is not amendable ; as in assize, 
and Paget. where the teste was duodecno regis for duodecimo, the writ was 
^henlr abated ; {b) because it would have been erroneous to have pro- 
should have ceeded on a wrong writ; for this could not have been pleaded in 
been destruciio- bar of a new assize; and the court could not amend it, because 
nem in a writ ^j^g cursitor was judge of the day when the writ issued, and there 
amendable! ^^^^ "° instructions to amend the writ by. 

Freeman's case, 5 Co. 43. adjudged. Cro. Eliz. 462. adjudged, the word there being distruc- 
tionem with an i, and not an e. 2 Bulstr. 51. cited, and vide Hut. 56. indicari for indicLari; and 
2 Roll. R. 255. 

8 Co. 159. a. So if a writ be brought against executors in the debet sundi deti- 
5 Co. 36. j^gf^ ^Q^ shall not be amended, because the action is miscon- 

ceived, giving the court authority to proceed against executors 
jure propria, when they are not so chargeable by the law. 
8 Co. i6o. But the negligent (<;) omission of what the clerk in course 

(c) So in a writ ought to have inserted (as the omission of dei gratia) in the style 
ISrrfhe of *e king, shall be amended. 

words ostensurus quare nonfecerit, was supplied. 8 Co. 160. a. — In a quare impedit, the word 
ad was omitted and amended. Goals. 78. Cro. Eliz. 119. — In a forvicdon of lands in L. 
the word in was omitted and amended. Noy, 73. [Teste of a capias amended, as vitiuvi 
clerici, and contrary to implied instructions. 2 Black. R. 918. 1 Term R. C. P. 291. A re- 
plication am.ended after verdict, by inserting the similiter instead of, &c. Sayer v. Pocock, 
Cowp. 407.] iJAnd in Wright, q. t. v. Horton, 2 Chitt. R. 25. the court, on the authority of 
Sayer v. Pocock, amended the record in a penal action after a verdict for the plaintiff', by 
adding a similiCer, though the objection was taken at the trial ; and see 1 Stark. 400. and 
lIolt,N. P. C. 458. S. C. and Grundy v. Mell, 1 New R. 28. But in a subsequent case, in the 
C. P. where the avowant in replevin had taken the record down to trial without adding the 
similiter to the conclusion of the plea in bar, the verdict was set aside without costs. Griffith 
V. Crockford, 5 Bro. & B. 1.; and see also Ferrers v. Weall, 2 Moo. R. 215. Cooke v. 
Burke, 5 Taunt. 164.1J 

{d) So is the And here it may be proper to observe, that the want of an 

Zii^efr^^'i ^"g'"''^K^) is helped {e) after the verdict by 18 El. c. 14. so is the 
and'otheTpro- want of a bill upon the file(^), but the statute does not extend to 
cess. Videsupra ^elp a vitious writ, {i) 

the notes on 18 Eliz. c. 14. and 2 Salk.454. 2 Ld. Raym. 1143. (e) Vide supra the notes 
on 18 Eliz. (/) That the want of bill upon the file, which is in nature of an original, is aided 
by the equity of the act. Hob. 130. 134. 264. 282. Jones, 504. Cro. Car. 282. Style, 91. 
(») Cro. Ehz. 782. Yelv. 108. Sid. 84. 

3 Mod^y* • P"^ ^^ ^^^ original be misrecited on the roll, as in ejectment, 

Redman and ^^ ^^ ^^ swnmonitus instead of attacliiatus, after verdict, if on 

Edolph. search no original is found, it will not be error, for the statute 

helps the want of an original to all intents, as if there had been 

a good one on the file ; and if there had been a good one, such 

misrecital 



( D) Where Proceedings in Civil Causes amendabki ^' 209 

misrecital would not have been erroneous ; and if the recital of 
the original be but form, it was not necessary after verdict to 
amend the bill. 

II Where the plaintiff held one defendant to bail on a special Carr. v. Shaw, 
capias, and proceeded to outlawry against the other, but by a ''' AerraR.299. 
wrong name, the court on motion, gave leave to amend the 
capias, in order that a new original might be procured, and the 
bail be held liable. 

And where one of two obligees in a bond sued out a capias in Tabrum v. 
his own name alone, against the obligor, and took a recogniz- J^^^}' ^ 
ance of bail, and afterwards discovering the mistake, sued out a 
new original in the name of the two obligees, and applied to the 
court to amend the capias and recognizance according to the new 
original, the court granted the application as to the capias, but 
refused to amend the recognizance, as the bail could not be made 
liable without their consent. 

So a special capias omitting the Christian names of two of the 2 Smith R. 
defendants, was amended, by inserting them, although there was ^^^* 
nothing to amend by, on payment of costs. 

If there be less than fifteen days between the teste and return Boucher v. 
of process by original, it may be amended in the Common Wittle, 1 H. 

PleL. . ^^'''-''^ 

And where a capias is made returnable on a day certain, in- Walker v. 
stead of a general return day, that court will allow it to be ^awkey, 
amended on payment of costs ; but not if it is to the prejudice of jnman v. 
the bail. Huish, 2 New 

R. 1Z3. 

So where an attachment of privilege was made returnable Adams v. Luck, 
afler the essoin day, and before the quarto die post, instead of g jyj^^ jj^ 
being returnable on a day certain in full term, an amendment 
was allowed. 

But where the defendant was arrested on a bill of Middlesexy Kenworthy v. 
returnable on a dies non, the court held the writ void, and not Peppiat, 
amendable, and the defendant was discharged. || 288 ^A^t 

amendments affecting bail, see tit. Baily post, 

2. Of the Imparlance RoU, 

After the first term it is allowed in C, B. to amend the im- RoU- Abr. 198. 

parlance roll by the office paper-book, because that is instructions i r if ^r* 

to the prothonotary to enter up the imparlance roll, and there- 152. Moor 

fore that is equally amendable as the original is by the instruc- 392. Hut. 83. 

tions given the cursitor ; but this must be on affidavit that the Litt. Rep. 278. 

paper-book has not been altered since the defendant's attorney „ f ff'"S » 
r '^ , , . , , . "^ Bench they 

has put ins liand to it. ^\\\ amend 

botli the bill and the roll by the ofRce paper-book, because this is instructions for making them 
both ; but they cannot amend from any other paper-book, because such book is not instruc- 
tions left in the office to make up both the roll and the bill; but where there is no office-book, 
as where the general issue is pleaded, it seems they should amend either the bill or the roll by 
the declaration, of which they gave the defendant a copy, because such declaration is the only 

instruction to the clerk of the office.* * In B. R. a bill is seldom filed, unless agmnst a 

privileged person. — Where a bill is not filed, the court will permit a right iiill to be filed, 

without enquiring into the time of filing, and give tiie plaintiff leave to amend his nlca-roU, by 

Vol. I. P the 



no AMENDMENT AND JEOFAIL. 

the bill filed. Gardener ngalnst Browne, Trin. 15 O. 5. B. R. 2 Stra. 11 51. [But an amend- 
ment shall not be made in this manner after verdict, if it change the record in a substantial 
point. 2 Wils. 147.] 

Litt. Rep. 278. If the bill on the file be with blanks, or the imparlance roll be 
Hctley, 142. ^jjIj ijianks for dates or quantities, yet it may be amended by 
Roll! Abr 207. ^^^ paper by the clerks themselves, until a recordatur be ordered 
Cro. Jac. 165. of the verdict returned on the nisi priiis roll; but after such 
Cro. Eliz. 258. recordatu)' it can only be amended by the court ; for the roll 
2 w^r* ^"^' lies with the prothonotary to be made up according to the paper- 
12 Mod 684 l^ool^j \x\\iA the recordatur of the verdict be allowed ; but if after 
Stra. 139. the recordatur be entered, it is ordered on the roll in statu quo 
2 Stra. 734. tunc : and then the court is supposed to take conusance of it, in 
2 Ld. Rayni. what manner it then was ; and if the clerks might afterwards 
g^y * alter the roll after entry of the verdict, they might amend it in 

the verdict which is on the nisi prius roll, which was settled 
by the judge of nisi priics^ and cannot be altered but by rule of 
court. 
Roll. Abr. 191. The imparlance roll cannot be amended by the original writ. 
Hob. 251. And because the original writ is the authority on which the court 

note : If the proceeds, which the plaintiff must prosecute, for otherwise he 

count V3T1CS in 

form the de- ^^^^ ^^^ proceed in that cause. 

fendant may pl^ad it in abatement, for he has abated his own writ by prosecuting it in a 

different manner; but if it varies in substance, the defendant may move in arrest of judgment, 

because the court has no authority to proceed, having prosecuted a different matter from that 

which the writ has given authority to the court to take cognizance of. Jon. 304. Cro. Eliz. 

722. Cro. Jac. 654. 

Roll. Abr. 207. The imparlance roll cannot be amended by the plea roll or 

I "t^ R ^"^ -^'^ «/«■ jyn2« roll ; for the imparlance roll is the original declaration 

llut. 9I' Heti. a"^ the ground of all. 

59. 3 Bulst. 227. Hob. 76. Latch. 165. 

Roll, Abr. 199. But if the declaration be against H. B. and he imparls by the 
name of R. B. but pleads by his right name H. B. this is no ma- 
terial fault, because it is only a continuance from one term to 
another, and by pleading by his right name he acknowledges he 
imparled by a wrong name. 

2. Of the Plea Boll. 
Hob. 76. Roll. The plea roll may be amended by the imparlance roll, which 
f^'th^^V. "^ is no more than a recital of the imparlance roll, and begins with 
roll seeTidd's "" ^^^^^ proiit patet, being the count of the second term, to which 
Prac. 786. the defendant pleaded ore tenus, 
(8th edit.)l| 

Moor, 711. If there be a mistake in the attorney's name, it may be amended 

'^^f irV^V^*^' ^^ ^^ warrant of attorney ; for the warrant of attorney being pre- 
law V. Brown"* ^^^^^^t, will amend the plea roll, and the court will take notice 
the Court of ' that it is the same that appeared, (a) 

K. B. gave leave to do the very reverse to what was done in this case, viz. to alter the name in 
file warrant of attorney to that in the declaration, and this after error brought, and that vari- 
ance assigned for error. Dougl. 1 14.] 

Yelv. 38. Oro. But if the name of a stranger be put into the plea, this will be 
decision here ^ ^^''°''» ^^^ ^t cannot then appear to the court that the same man 
re^rrctl to, is that appeared did plead, and then there was no plea pleaded : and 

so 



D) fV/iere Proceedi?igs in Civil Causes amendable^ S^c, 211 

so if the defendant's name be mistaken in the putting in bis plea, j^at of the 
as if in an audita querela^ the plaintifFsurmises that he entered into court of error: 
a statute of 300/. to the defendant, for the payment of 50/. per and the reason 
annum for six years, to John Bush., a stranger, if the defendant S''*'^" by r^^ 
comes, and jirotestand., 8)'C. proplac. idem Johannes Bushf instead amendment 
of the defendant ; this is erroneous, because it does not appear to could not be 
the court that the plea was put in by the stranger, to whom the made in this 
payment was to be made, and not to the defendant ; but if the thrmTstake' 
plea had been, that the pra;dict. plaintiff venit et dicif, instead of h^d been spe- 
the defendant, this will be construed to be the misprision of the cially shewn 
clerk, for it is apparent that the plaintiff could not be the defend- for cause of de- 
ant; but it shall be supposed to be put in by him that appeared, ^"^t^elow 
since there is no other person. and the judg- ' 
ment of the court had passed upon the cause so shewn, and therefore all araendraents were 
ousted.] Cro. Eh'z. 904. 

4". Of the Jwy Process, ajid Nisi Prius Roll. 

If the venire be of the same place, and in the same action, and Fule head of 

between the same parties, all other faults will be amended. Juries. 

But if the place be totally misawarded, this is not helped by Vide 4 Ann. 

any statute; but if it is only misawarded in part, this is helped ^- \^- §^»J' 
U 4^1 jr^,T,io r> r and 24 G. 2. 

oy the express words or 21 Jac. 1. c. 13. ^ jg §5^ ^1,3^ 

the award is to be at large of the body of the county; and 3 G. 2. c. 25. Head ofJwies, 
. In ejectment, where the venire was de placit. transgressionis, Jones, S02. 
omitting et ejedionis Jirmce, the court held the venire to be ill, ^ Ef^^sss 
because it was not in the same action, for an action of trespass Cro. Jac. 528. 
and ejectment are different, and there might be an action of Qtusre, 
trespass between the same parties ; but if the distringas had been 
right, they would have judged this venire to have been null, and 
the want of a venire is aided by the statute. 

If the jurata mentions the issue to be dej)lacit. transgressionis, ^°' ?'!* ^^*' 
where the action is debt, and the award of the venire and dis- 3-4^ 535. ' 
tringas debt, this shall be amended; for the Jurata is an award (n)The award 
of the distringas, in pursuance of the award of the venire, and o" ^^^'I'^^'l^V 
the ve7iire being right, the secondary process {a) ought to be ^"J^JJ^ ^^e ve- 
made accordingly. nire, and the 

venire being right, shall amend the distrmgas, which is the proper process for convening the 
jurors in the King's Bench : So of the habeas corpora, which is the Common Pleas proceffi. 
Lit. liep. 252, 253. 

So if the sheriff return nomina jurat, inter partes prtrdict. de Roll. Abr. 202. 
placit. tratisgressionis, where the venire is d[e placit. debit, this ^'"^* ^^^' ^'^^' 
shall be amended ; for in dorso brevis he says cxecutio istius brevis 
patet, S)-c. which could not be if it was not in the same action. 

The award of the venire must be to a day in the same term. Mo. 465. 710. 
or to the next term, but it must be in term, otherwise it is Danv.Abr.335. 
erroneous. 

But if the distrmgas be without the day of nisi prius, or men- ^ ^^''•/^* 
tion a wrong day, if the jurata roll be right, the distringas may J ^ Mod ^07 
be amended by the jurata roll. 274. Ld.Raym. 

95. 511. 2 LdRaytn. U44. 
P 2 So 



212 AMENDMENT AND JEOFAIL. 

Cro Eiiz. 7G0. So if the return of the venire be mistaken, this may be amended 

820. Owcn,6'-\ l,y tlie roll ; and if the teste of the venire be out of term, or before 

Cro. Jac. 162. pie^i pleaded, it is no error ; for the /r.s/^ of judicial writs being 

3 UolL^Abr. on'y niatter of form, shall not vitiate if mistaken. 

200. 

Vide head o( If the number or qualifications of the jury be omitted in the 
Juries. venire, it may be amended by the roll, and the rather, because 

these matters are ascertained by the law. 
Danv. Abr. If there be a mistake in the christian name of a juror, it is in- 

.330. Cro. Eliz. curable (rt), for the statutes do not extend to it, but only extend 
f^\n^^% 1 ^° ^^^^ surnames and additions, for there can be but one name 
christian name ^^ baptism, but there may be various surnames and additions ; 
be wrong in and therefore if it can be proved what person the sheriff meant 

the distringas, l)y his surname or addition, it may be amended and set right, 
or in the pa- 
nel returned, or in the panel of the jiirj' sworn, if it can be proved to be the same man that 
was intended to be returned in the venire, having there his right christian name, it may be 
amended. Roll. Abr. 196. 197. 3 Bulstr. 18. Hob. 64. Brownl. 174. See 2 Stra. 1 2 1 4. 
||See Willes R. 488. 12 East R. 229. 6 Taunt. 460. and tit. Jtuies (I).|| 

Vide for this If the court on an insufficient suggestion awards the process to 

hcid of Juries, ^j^ improper officer, yet this is aided after verdict, for that only 
makes an insufficiency in the return of the jury, and insufficient 
returns are aided ; for it was the design of the statute, that if the 
cause was tried by a right jury, that it should not be material 
what officer jjot them together. 
8 Co. 166. As to the 7iisi prills roll, which is only a transcript of the plea 

C'lrth' 506 ^^^^ ^^ carry the issue into the country, if it differs from the plea 
5 Mod 211. *'oll in any matter which does not alter the issue it may be 
Salk. 48,49. amended; but if it differs in any matter which alters the issue it 
(6) Variance in cannot be amended by the plea roll, because it does not give the 
roU^'e^ided J^^'S^ ^^ ^"^^ prius authority to try the matter which is in issue 
by the plea roll between the parties on the plea roll, {b) 
in indictment for forgery. Barnard. K. B. 132. 2 Ld. Raym. 1518. 2 Stra. 843. 

8 Co. 166. As if the issue be on the addition of the defendant's name, 

whether J. S. was husbandman die impetrationis Inevis, and the 
nisi prius roll be, whether he was husbandman generally, omitting 
the words die impetrationis brevis, this is not the issue on the plea 
roll ; and therefore cannot be tried. 

Brownl. 47. So in a bond conditioned for the payment of a certain sum at 

the first next ensuing the date, and on the nisi pi'ius 

roll the date be omittetl, this is not the same issue as on the plea 
roll. 

Dyer, 260. But where the defendant's name is omitted in joining of issue, 

this shall be amended by the plea roll, because the issue is not 
varied, and the justices of nisi prim have authority to try it by 
the distringas. 

Roll. Abr. 202, So where in an action on the case upon assumpsit, the defendant 
(upon the plea roll) pleads non assumpsit, and on the nisi prius 
roll it is Tion adpabilis, after verdict the nisi prius roll shall be 
amended by the plea roll, for both pleas traverse the gist of the 
action ; and the defendant has the same advantage in the non 

culpabilis. 



(D) Where Proceedings in Civil Causes amendable, cSjC. 213 

culpabiliSi as in the non assumpsit, and the issue is the same in 
substance. 

So in ejectment against seven defendants, who entered into the Salk. 48. pi. 5. 
common rule, and pleaded to issue, the plea roll, venire, distringas Ld. Raym. 94. 
mxA jurata "wevQ right; but the issue on the nisi pritis roW w^s IfM^mUio?. 
between the plaintiff and five defendants only ; after verdict for 
the plaintiff this was amended, for the lessor's title was the gist of 
the action, and the only thing inquirable of by the jury. 

II So also in assumpsit against two defendants where one had Murphy t. 

pleaded the general issue, and the other had suffered judgment Marlow and 

by default, but the 7iisi prius roll stated by mistake that the ""^"^ ^^' „ -„ 
J c \ 111 . 11 1-1 iCamp. K. 6. 

same defendant pleaded non assumpsit, and also came and said 

nothing, <^c. Sfc. and it did not appear that the other had come 

in at all, Lord Ellenborough C. J., on consent of parties, directed 

the clerk of nisi j)rius to make the proper amendment. 

So also the court gave leave to amend the nisi prius roll by Boys v. Ed- 
inserting a special title to the declaration of a day subsequent to "icads, 2 Chitt. 
the defendant's coming of age, he having been a minor on the gj^^y pi-'i^sted" 
first day of term. V Term R.474. 

So also after a nonsuit for a variance in an undefended action, Halhead v. 

the Court of Common Pleas permitted the record to be amended Abrahams, 

and a ne>v trial had. II Sle'nd! 

ing the record to cure variances under the 9G. 4. c. 15. see Picas and Pleading {\i) 5.^ 
and 1 Moo. & Malk. 359. 253. 3 Car. & P. Ca. 485. 594. 4 id. 22. 24. Tidd (9tU edit.) 
Suppl. 127. 

5. Of the Verdict. 

If the jury find a certain verdict, and it is entered uncertainly (a) Where the 
on the record, if the judge who tried the cause remembers cer- jnystea is 
tainly how the jury found it, it shall be ascertained by the amendable by 
memory of the judge {a), and the verdict may be made certain as *| "^'^^P ^ 
thejury found it. takelTbyrte 

clerk of assize. Moor, G89. Cro. Eliz. 112. Where the mis-entry of the verdict shall be 
amended. Vide Cro. Eliz. 677, 2 Jones, 211. Special verdict amended after argument 
without costs. Ld. Raym. 335. See Stra. 514. l Lev. 131. Postea amended by judge's 
notes. 2 Stra. 1 197. 1 Will. 33. [Where there is a general verdict on a declaration, con- 
sisting of different counts, some of which are inconsistent, or bad in point of law, and evidence 
has been given on the good or consistent counts only, the verdict may be amended by the 
judge's notes. Dougl. 561. 718. Alitor, it seems, if evidence has been admitted on the bad 
or inconsistent counts. Id. 562.] ||And accordingly the Court of King's Bench refused to 
amend the verdict in an action of slander, where one count out of four was bad, since the 
evidence applied equally to all the counts. Holt v. Scholefield, 6 Terra R. 691. But where 
evidence was given on both counts and the first count was bad, but it appeared, from the 
judge's notes, that the damages were calculated merely on evidence applicable to the second 
count, which was good, the Court of Common Pleas refused to arrest the judgment. Williams 
V. Breedon, 1 Bos. & Pull. 329.|| [An amendment by the judge's notes, it was formerly 
holden, could not be made after judgment. Id. 703. But it seems now, that it may be made 
at any time, even after final judgment, and a writ of error brought. 3 Term R. 749. A 
mistake in not entering up a verdict ou one of the issues, allowed to be amended by the judge's 
notes, after error brought for that reason, and joinder in error. Id. 659.] ||But when the 
application was made after a lapse of eight years from the trial, and the defendant had since 
reversed the judgment on error for the badness of one count of the declaration, the Court of 
King's Bench refused the amendment. Harrison v. King, 1 Barn. & A. 161. But in a late 
case in assumpsit some of the counts were bad and some good ; and the jury having found a 

P 3 verdict 



ei4 AMENDMENT AND JEOFAIL. 

verdict for the plaintiff with general damapes, upon evidence applicable to all the counts, the 
Court of Common Pleas after error brought, and argument in K. B., amended the postca by 
the judge's notes, by entering the verdict for the plaintiff oa the first count, and for the de- 
fendant on the others. Richardson v. Mellish, 1 1 Moo. 104. sBing. 334. And they amended 
the judgment roll by the amended postea, after the judgment had been reversed, and the 
reversar entered of record in the court of error. 11 Moo. 119. sBing. 346. ; and see 
7 Barn. & C. 819. S. C. After verdict in ejectment brought for a messuage and tenement^ and 
pending a rule to arrest th° judgment, the court will give leave to enter the verdict according 
to the judge's notes for the messuage only, without obliging the plaintiff to release the da- 
mages. Goodtitle v. Otway, 8 East R. 357. The court will not amend a verdict according to 
the^note* of an arbitrator. 1 Chit. R. 283. The application to amend by the judge's notes 
should be made to the judge who tried the cause, and not to the court. Ilnd., and 1 Barn. & 
A. 161.; and see tit. Verdict (D) and (L).|| 

Cro. Car. 338. As if in debt for 19/. 105. the plaintiff declares upon a lease of 

Eliot and copyhold lands, rendering 38Z. per annum, and upon a lease of 

d^' freehold land, rendering 205. per annum, and demands 19/. for 

' half a year's rent of the copyhold, and 10s., for the freehold ; 

and upon nihil debet pleaded it was found for the plaintiff, quoad 

the 105. for the freehold, and for the defendant guoad the 19/. 

for the copyhold ; but in the postea it was returned, that they 

found for the plaintiff qtioad lOs. part of the said 19/. 105. and 

quoad the residue nil debet, so that it was altogether uncertain 

which of those rents were paid ; yet if the judge that tried the 

cause remembers that, quoad the copyhold rent, the jury found 

for the defendant, and quoad the freehold for the plaintiff, the 

postea shall be amended accordingly. 

Roll. Rep. 82. Also a special verdict may be amended by the minute or 

Roll. Abr. 207. notes taken by the counsel or clerk of assize (a\ after a writ of 

Hetl. 52. Lit. I 1 / 

Rep. 61. Cro. error brought. 

Car. 144. 4 Co. 52. Salk. 47. pi. 4. 48. (cr) But though a verdict, general or spedal, may 
be amended by the notes in the book of the clerk of assize, if there be a misprision ; yet this 
cannot be done in a criminal case. Salk. 53. pi. 19. 47. S. P. Ld. Raym. 141. 11 Mod. 84. 
(land Stra. 844. 2 Hawk. P. C. 922. contra.^^ [And see Dougl. 362. where a mistake in the 
verdict in a criminal case, was corrected from minutes signed by the jury. In Bunb. 285. a 
mistake in a special verdict on an information of seizure, amended bv minutes, after one argu- 
ment.] llSee tit. Verdict (D).!| 

[The point in But nothing can be added to the minute or notes, though 
this clause was never so strongly proved by the evidence, because that would be 
upon°in any of ^ subject the jury to an attaint for a fact that was never found 
the passages re- by them, 
ferred to in the former editions.] || Attaints are now abolished by 6 G. 4. c, 50. $ 60.1| 

(E) What Defects may be amended or aided after 
Verdict : and herein, 

1. Of the Wajit of sufficient Certainty in the Plaintiff's Declar- 
ation, 171 not setting fotih his Cause. 

For this vide Jk VERDICT cures not only such defects as may be called arti- 
head of ^rror; ficial defects, and come within the purview of the several sta- 
p!^^UetTcq.' '"*!^ ?^ amendments and jeofail, but also natural defects, or the 
and 1 Will. ' omissions of the parties in their allegations, which must be pre- 
Sand. 227. sumed to have been given in evidence to the jury ; otherwise they 

et seq.noth could not have found a verdict for the nartv. 

(5thedit.|| * • ,pj^^ 



(E) What Defects may he amended or aided after Verdict. 215 



The chief intent of all the statutes oi jeofails seems plainly to be, 
that the wrong pleading of any collateral matters not essential to 
the action, should, after the expense of a trial, and verdict for 
the party, be aided, but not to extend to matters of substance, 
or whatever is essential to the gist of the action ; for this would 
have ruined all proceedings in the courts of justice; besides, had 
such essential part been set forth, it might occasion a contrary 
verdict; neither can the jury be attainted for a false verdict 
on the uncertain allegations of the parties, for it cannot appear 
whether the damages given by the jury be proportionable to the 
demand or not. 

Whatever therefore appears to be essential to the gist of the 
action cannot be cured after verdict ; for the law requires that 
all substantial facts shall be laid in proper time and place, so that 
the defendant may traverse them distinctly if he pleases ; for as 
he may traverse the whole, so he may traverse each substantial 
part, in order to put the weight of the cause on any one thing 
that will put an end to the cause. 

But as this matter is more fully treated of under the heads of 
Eiror and Pleas and Pleadings, we shall here only observe, that 
the difference in all the cases on this head turns upon what is sub- 
stance, and what is form; which must be determined in every 
action according to its nature. 

2. Of Repugnancy and Surplusage. 

Surplusage does not vitiate after verdict, according to the 
maxim, utile joer inutile non vitiatur ; and therefore, if such sur- 
plusage is repugnant to what is before alleged, it is void ; as if in 
trover the plaintiff declares that he was on the 4th of March 
possessed of goods, and that afterwards, scilicet the 1st of March, 
they came to the hands of the defendant, who converted them. 

So in ejectment, the jilaintiff declared on a lease made to him 
the 3d of iliaj/, and that the defendant 7?os/<7^, scilicet lai o{ MaTj, 
ejected him ; this was held good after verdict ; for by the jwstea 
it appears, that the defendant committed a tort on the plaintiff's 
title ; and when he says a repugnant day, it is as if he had laid 
none ; and if no day be laid, it shall be intended after verdict, 
that the tort was committed before the action brought; for it 
would be very foreign, after verdict, to intend that the action 
was brought by the spirit of prophecy, for a wrong to be com- 
mitted afterwards; besides, the jury could not take cognizance 
of any fact done since the action brought, for that was not in 
issue. 

In debt on an obligation, the defendant pleads payment of 50/. 
l^Jmiii 11 Jac. according to the condition ; the plaintiff replies 
quod non solvit 501. jn-ccdict. 1 4* August. a?mo 1 1, suprad. quas. ad 
eundem diem solvisse debuissct, et hoc, &c., the verdict found qtiod 
non solvit prcedict. 14 Junii p-out the defendant had alleged ; the 
objection here was, that no issue was joined, because they do not 
meet in the time the money was paid ; but the word August is 
plainly surplusage, for when he said quod non solvit prcedict. 14 

P 4 " die, 



[After verdict, 
the insertion in 
some ot the 
counts of the 
defendant's 
name instead 
ofthcplaintiflfs 
rejected as sur- 
plusages Wils. 
43.} 



Vide tit. Pleas 
and Plead- 
ings (B), 
5 "Mod. 286. 
Ijand tit. Ver- 
dict (X).|| 



II Vide tit. 
Pleas and 
Plcadinss (I), 

4.11 

Cro. Jac. 97. 

428. 

Yelv. 94. 
Garth. 288, 
289. 



Cro. Jac. 549. 
[See Cro. Jac. 
585., where 
such a va- 
riance in the 
cpiatituvi of 
the demand 
was holdcn to 
be fatal] 



S16 



AMENDMENT AND JEOFAIL. 



Where the 
plaintiff may 
release such 
repugnant 



die, it is a sufficient traverse without the word August^ and August 
is plainly repugnant to the word prccdicLy for pradict. refers to 
June : and such surplusage being a repugnancy to what was be- 
fore material, was idle and void. 

But if there be a repugnancy in any point material, there it is 
not helped by a verdict, unless the verdict appears to have been 
given on a different part of the declaration. 
part,"r«/e Sand. 282. 886., and head of Pleas and Pleadings. 
Cro. Jac. 264. If the replication be repugnant to the declaration, it makes the 
Sand. 116. declaration bad, because the subsequent pleading falsifies the de- 
claration ; as if a man declares on a bond made 1 Mariti, if the 
plaintiff replies that the bond was delivered 30 Martii^ this falsi- 
fies the declaration ; because it could not be made the first ; so if 
the rejoinder falsifies the bar, the bar is vicious. 

3. Of Insifffkiency in the Defendanfs Bar. 

Cro. Elix.778. As the plaintiff 's action must have all essentials necessary to 
maintain it, so the defendant's bar must be substantially good; 
and if the gist of the bar be naught, it cannot be cured by a ver- 
dict found for the defendant; but it found for the plaintiff, he 
shall have judgment, either for the badness or falsehood of the 
bar; but if it be bad only in form, a verdict will cure it : and if 
the gist be traversed, all collateral circumstances will be intended 
after a verdict. 

Thus in an action of debt on a single bill, the defendant pleads 
• payment without an acquittance, and it is found for the defend- 
ant, yet he shall not have judgment, because the gist of the plea 
IS bad, since the obligation is in force till dissolved eo ligamine 
quo ligatur, and the acquittance under the seal of the plaintiff is 
the gist of the bar; but if it had been found for the plaintiff, he 
should have judgment, because the bar was not only bad in sub- 
stance, but found false. 

.- ?"^,^^ ^^^ ^''^^ b^ o"Jy bad in form, a verdict will supply it : as 
it in debt on a bond conditioned for payment of 100/. 25 Junii 
prox., and the defendant pleads payment on the 20th o^ June, 
and it is, according to the plea, found that he did pay it the 
20th ; though this bar be bad in form, because it does not follow 
the condition, and the plaintiff might have taken advantage of it 
on a special demurrer, yet the verdict having found payment be- 
Jore the day, that m law is payment at the day, and the substance 
IS found. *' 

4. Of immaterial and informal Issues. 

A verdict cannot help an immaterial issue (a); for if what is 
material m the pleadings be not put in the issue, it is not made 
necessary to be proved on the trial ; or if it be alleged and proved, 
yet It It appear insufficient, so as not to be decisive between the 
parties, the verdict will be no good foundation for the judgment ; 
but an infoi-mal issue is helped by the verdict. 

the pleadings is npt traversed, but an issue taken upon such a point as will not 

determine 



5 Co. 43. 

Mo. 692. Cro 
Jac.377.S.C. 
cited. 



F«fchead of 
Pleat and 
Pleadings (I). 



ll^Vide iM.Pleas 
and Pleadings 
(M).l|Lev. 
32. Carth. 
371. (a) An 
hnmaterial 
issue is where 
what is mate- 
rially alleged by 



(E) What Defects may he amended or aided after Verdict. 217 

determine the merits of the cause; and an informal issue is where it is not traversed in a right 
manner. Brownl. 229. Cro. Eliz. 227. 2 Mod. 1.37. 10 Mod. 19. 11 Mod. 2. Ld Raym. 16S. 
2 Stra. 933. 2 Barnard. K.B. 55. 2 Stra. 1011. p Bos. & Pull. 348.11 

If the plaintiff declares on a promise to find the plaintiff, his 3 Leon. 66. 
wife, and two servants, with meat and drink for three years, on Kirlee and 
request ; the defendant pleads that he promised to find the plain- 195 /g q 
tiff meat, S,x. absque hoc, that he did promise to find, S^c. for three cited. Godb. 
years next following, and hoc petit, SfC. and verdict for the 56. S. C. cited, 
plaintiff; yet he shall not have judgment, because the promise 
in the declaration is laid to be on request, which promise is not 
traversed in the same manner ; besides the plaintiff in his replica- 
tion alleges a promise next after he was married, which is not the 
same the defendant traversed ; so that they are not at issue a point 
traversed in bar, since the bar is for a contract for three years on 
request, and the replication for a contract for three years next 
ensuing the marriage, and non constat by the verdict, which of 
the contracts was proved on the trial. 

So in trespass, the defendant pleads an accord between the Roll. Rep, 86. 
plaintiff and J. S. of the one part, and the defendant of the other 
part ; the plaintiff replies quod non hahetur talis concord, between 
the plaintiff and defendant, qualis the defendant had alleged ; and 
issue joined and verdict for the plaintiff; yet he shall not have 
judgment, because he does not traverse the same accord that is 
set out in the defendant's bar, but puts another accord in issue, 
not alleged in the defendant's bar, viz. between the plaintiff and 
defendant only. 

So in debt on a bond conditioned for the payment of 105/. the Cro. Jac. 585 
defendant pleads payment of lOOl. secutidum Jbrmam et effectum Sandbank and 
conditionis : the plaintiff replies, non solvit jprcsdict. 105/. this is Turvy, Cro. 
an immaterial issue (a), not aided, for the plaintiff has not tra- a^'a^^I 
versed the same payment that is in the defendant's plea. error." Hob^°" 

173. S. P. adjudged, (a) But where an issue is decisive between the parties, though not so apt, 
it shall be cured after verdict. Vide 2 Jon. 184. Cro. Jac. 44. 435., and heads of Error, and 
Pleas and Pleadings ; jjand see 2 Will. Saund. 519. a. b.j| 

If an issue be on a point that is impossible in sjihstance and Cro. Car. 78. 
nature of the thing, it is not cured by the verdict ; but if it be P"''ch<ise and 
only impossible in the manner and Jojin of it, a verdict will cure j 40 s C ' 
it; as in debt on a bond conditioned for the payment of 100/. on Latch. 158. 
the 31st o? September, and defendant pleads payment at the day, S. C. Noy, 86, 
and it is found against him, the plaintiff shall have judgment: 86.S.C. ad- 
because the payment is what is material, and the day impossible, ^ °^' ' 
and is altogether idle and void ; for not being paid before the end 
of that month, the obligation is absolute. * 

In an action of assault and battery, the defendant pleads that Sid. 444. 
the plaintiff neglected his service, per quod moderate castigavit : Vent.70.2Keb. 
the plaintiff replies, quod non moderate castigavit, and the issue ^'^s- (i) Where 
found for the plaintiff; though this be an informal traverse, ^n rnegSe"^ 
being (6) rather a traverse of the chastisement, than of the pregnant, 
moderate manner of doing it, and the right traverse should have though bad on 
been de tnjurid sua propria absque tali causa ; yet after verdict it ^ Jeniurrer, is 
is good, because the jury have ascertained that he did not beat §5S. ViZcTo 
him moderately. jac' 87. and 

head of Pleas and Pleadings, (16.) 

In 



S18 



AMENDMENT AND JEOFAIL. 



Noy, 56. 
2 Jones, 184 



pleaded to an 
tuttimprit, yet 
the plaintiff' 
had judgment, 
though an im- 
proper plea, 



In an action of debt, if not guilty be pleaded, and there be a 
verdict for the plaintiff, it shall be aided by the statute; because 
'mltv wa3 "^^ being an ill plea {a), and a false one, the plaintiff ought to have 
■ • • his judgment, both for the badness of the plea and for its false- 

hood ; but if the verdict had been for the defendant, yet the 
plaintiff should have judgment, because the declaration is not 
answered by the plea, (b) 

Cro. Eliz. 470. |l2 Salk. 7.'54. 2Stra. 1022,|| 2 Roll. R. 368. fOM/. }n debt 
against an executor upon the bond of his testator, the defendant pleads non est factum, &c. 
Hardr, 458. In an action of covenant, on a covenant that C. was seised in fee, and assigns 
for breach that C. was not seised in fee, et sic infi-egit conventionem ; though, in covenant, the 
defendant ought to traverse either the deed or the breach, and both cannot be involved in 
non fregii conventionem, because the gist of the action lies on the deed, which must be 
traversed by itself, yet when the defendant pleads a bad |jlea, which is found against him, 
the plaintiff" may have judgment either for the insufficiency or falsity of the plea. Sid. 289. 
Lev. 183. S.C; CTcfe Moor, 599. Cro. Eliz. 457. 2 Leon. 116. S. P. (i) Qm. If in debt on a 
penal statute, as for not setting forth tythes, for usury, &c. not guilty would not be a good 
plea, though nil debet is the proper, formal plea. 1 Term R. 462.] 

Roll. Abr. 200. If on an issue tendered by the plaintiff, the defendant joins the 
Yelv. 65. S.P. scilicet {a) by the plaintiff's name, or the plaintiff joins the scilicet 
by the defendant's name, to an issue tendered by the defendant, 
this shall be amended, there being a negative and affirmative 
before, between the plaintiff and defendant, which is the pattern 
whence the joining that issue is to be taken ; there is a sufficient 
copy whence this may be amended, it being, from the nature of 
the thing, a plain mistake of one man's name for another. 

upon an information. Stile, 167. ||(c)This is a mistake for similiter. In a case, 2 Stra. 1117., 
where a similar error appeared at the trial, the Chief Justice dismissed the jury ; but in a sub- 
sequent case the court refused to arrest the judgment on this ground. 5 Burr. 1793.; 
and the want of a si7nililh' is now held amendable. Cowp. 407. 2 Chitt. R. 25.; sed vide 
3 Bro. & B. l.jl 



Cro.Jac. 67 
adjudged. 
Cro. Eliz. 752. 
S. P. adjudged. 
Palm. 524. 
S, P. per cur. 
Misnomer in 
joining issue 



(F) 



Of amending the Judgment. 



Leon. 134. TT is a general rule, that the court will make no amendment 
^^^'^^^' that will defeat a judgment, the statutes allowing amendments 

367. 520. Ld. *" affirmance of judgments only. 
Raym. 565. 5 Mod. 16. 69.' Comb. 354. ; but see now 5 G. 3. c. 13. supra. 

Roll. Abr. 537 But in affirmance of the judgment, the judgment itself may be 

set right and amended by another part of the record, in a fact 

which appears to be the misprision or neglect of the clerk, as in 

the mistake of the names of the parties ; so in debt against A. and 

the judgment is quod pi-adictus B. capiatur, when it should have 

been prcedict. A.y this shall be amended. 

So in an action brought by Robert Meredith^ and the judgment 

as entered, was quod predict. Carolus Meredith recuperet^ and the 

court held this amendable, being only the fault of the clerk, the 

misprision being only in the name, which was right in the rest 

see Cowp. 841. of the record, which was before the clerk, and should have 
where the j- » i i • 

Court of directed him. 

King's Bench, in this country, amended a record in ejectment from thence, by enlarging the 
term.] Vide several cases to this purpose, Cro. Eliz. 400. 864. Hob. 327. Moor,561. 697. 
Hut. 41. Brownl. 56. Raym. 39. Comb. 64. 

So 



Vent 217. 
[This case was 
on a writ of 
error from 
Ireland: and 



(P) Of amending the Judgment. 219 

So if in an action of debt upon an obligation against Rob. H. ^ ^, ^ 
conditioned that if Henry H. or Rob. H., the defendant, should pgiham and 
pay, ^c. judgment is entered that the plaintiff recuperet debit7im ct Heming. A 
damna against the said Robert^ et ■prcedictus Henricits inmiseri- judgment ^worf 
cordia ,- where it should have been Robei% for Henry was no ^^^^f^fj^^J^eT 
party to the record ; this shall be amended, for it is only the instead of ' 
mistake of the clerk. pnedict. 

Arthurus, iimended after twenty years' standing. 4 Mod. 371. 12 Mod. 384. 2 Stra. 1132. 
1156. 1182, 

As to amending the judgment by the docket, it is to be Cro.Car.574, 
noted, that before the statute 4 & 5 W. & M. c. 2. which, for ffj^'^gf ^* 
the security of purchasers, requires that all judgments should be i Wils.ci. 
docketed, the courts used to amend both the judgment and the 2 Stra. 1209. 
docket, where there were sufficient instructions to amend by; but 
now the docket cannot be amended ; and therefore if there be a 
false docket, which is as none, though a right judgment, the pur- 
chaser is safe, and the party grieved must take his remedy against 
the officer for not docketing it truly. 

In a qiiare impedit for the presentation of a vicarage, and the Hob. S27. 

judgment is quod recuperet ecclesiam, this shall be amended (a). Hut, 41. Cro. 

beinjr the mistake of the clerk, who had sufficient instructions ^^^-^^f' ^: ^• 
n ° I . ^ ^ -A. • \ I (a) So in debtfl 

iTom the posiea to enter it right. where the 

judgment was entered qicod recuperet the sum in the declaration, pro misis et custagiis,va%tea.6i of 
pro debito prcedict., and amended. Vent. 132, In debt against an attorney by bill, the judgment 
is quod querens nil cajnat per breve, where it ought to he per billam, yet it shall be amended. 
Roll. Abr. 206. Cro. Car. 580. 

So if judgment be against a man and his wife, and the judg- Hob. isr. 
ment is that the wife is m misericordia, and not the husband, this Mo^'N ^^^•__ 
is amendable by the paper-book that is right. Brownl.ie?^' 

Roll. Abr. 206. 215. S.C. 

In ejectment brought by two, if judgment be entered that the 2 Jones, 199. 

plaintiffs recuperet, this is a plain mistake of the clerk, and shall l- '^ J""=!- 
\ -x •> ^ ment was en- 

be amended. te,ej ^^^^^^ 

executors de ^onw ^>;'opriw instead o'i de bonis testatoris, and error brought upon it; this being 
considered as merely the blunder of the clerk, was amended after argument in the Exchequer- 
chamber. 5 Burr. 2730. 2 Lev. 22.] jjAnd see Green v. Rennett, 1 Term R. 785. But where 
an executor pleaded a false plea of judgment recovered, and the plaintiff entered up the judg- 
ment for debt and damages de bonis testatoris, et si non, de bonis j)ropriis, and words were after- 
wards interlined (it did not appear by whom), by which the judgment de bonis proprtis was 
confined to the damage alone, the Court of C. P. refused, on motion, to strike out the words 
interlined, the judgment being of six years' standing, and the amendment going to Jix the 
executor's liability, whereas in the case in 5 Burr, it was to discharge it. Burroughs v. Ste- 
phens, 4 Taunt. 554. 1 Marsh. 21 l.H 

If the damages de incremento be mistaken hj the clerk (6), the j^ n ... 
court will amend it by the judgment-book, because that was a (i) As wliere 
sufficient instruction to the clerk to have entered the judgment the jury found 
by, and therefore it was his misprision not to go according to his ^?^ ^^^ P'*'*'" 
instructions, which may be rectified and amended. 2* d^aln '^^^ 

and so much for costs, and the clerk, in entering thereof, says 2*. for damages, and so much for 
costs, and so much pro incremento, qua: in toto se attinguni to so much ; in which sum the 2s. is 
not comprehended, this shall be amended. sBulst. 114. 8 Co. 162. Palm. 509. Dyer, 55. 
Roll. Rep, 272.; and vide like amendments in declarations, where the total sum is miscast. 
Bulstr, 171. 179. 2Bulstr. 149. Yelv. 5. Noy, 44. Poph. 209. 

II Where the jury by mistake gave damages in a penal action Hardy v. 

in Cathcart, 



220 



AMENDMENT AND JEOFAIL. 



Pickwood V. 
Wricht, 1 n. 
Black. 642. 
Usher V. Dari' 
8cy, 4 Maule 
& S.94.; and 



Dunbar v. 

Hitchcock, 

5 Taunt. 820.; 

and see 

2 Taunt. 554. 

5Chitt.R.30. 



1 Marsh. 180.; in the Common Pleas, and error was thereupon brought, the 
and see Good- Court of Common Pleas allowed the plaintiff to amend, by 
title V. Otway, entering a remittitur of damages on the record, and making the 
8 bast, 3 . transcript conformable. 

And where a verdict is given for a greater sum than the 
amount of damages laid in the declaration, and for that cause 
error is brought, the court will allow the plaintiff to amend the 
judgment and transcript, by entering a remittitur for the excess, 
on paying the costs of the writ of error, 
see 2 Barn. &C. 902. 4 Dow. &Ry. 566. 11 Price, 410. 3 Bing.346. 2 Chitt.R.24. 

Where the defendant was entitled to treble costs under the 
Mutiny Act, and entered up his judgment for treble costs gene- 
rally, without stating on what ground he was entitled to then), 
the Court of Common Pleas refused, after error brought in the 
King's Bench, to amend the judgment by striking out the word 
« treble." 

But a writ of error being afterwards brought from the King's 
Bench into the House of Lords, the Court of King's Bench, on 
motion, allowed an amendment to be made, by inserting the cer- 
tificate of the judge who tried the cause, allowing the defendant 
treble costs. 

Where a general verdict was given in Common Pleas for the 
plaintiff on a declaration consisting of several counts, some of 
which were bad in law, and the evidence applied to all the 
counts, and the Court of Common Pleas, after eiror brought 
and after argument of the error, amended the postea by the 
judge's notes by entering a verdict for the plaintiff on the first 
count, and for the defendant on the others, and also amended 
the judgment roll in Common Pleas by the amended postea 
a/?£7- judgment had been reversed in the King's Bench; it seems 
that the court of error (King's Bench) was bound to amend the 
record by the amended record of the Common Pleas. |i 

In ejectment, if the judgment is entered quod querens recuperet 
the damages and costs, and not quod recuperet tcrminum^ as the 
case is, this shall be amended, though this be but an action of 
trespass in its own nature. 

If a judgment be given on demurrer against the plaintiff, and 
the entry of the judgment is of a nonsuit mstead of a judgment 
in demurrer, this shall be amended. 

^^ ^^ '^^'^"^^"''^ 1^^^^' '*" ^^^ entered quia placilum cstsufficicns in lege, instead of quia minus 
ttiffidens est, and the court held this not amendable (though it was right in the paper-book 
between the parties); but Popliam and Granville contra. Owen, 19. And Qu. If those contra 
were not right ? 

2Sand.28f). If in replevin the defendant demurs to the plaintiff^s plea in 
and^Loncvil?e ^^^ *° ^^^ defendant's avowry, and judgment is entered quod visis 
amended after' J^'^niissis, &c. vidcturjusticiariis quod placitU7U prcedict., &c. mi?ius 
a writ of error sufficiens, &c. but these words, ideo considaatum est quod the 
broiight, and plaintiff nihil capiat per breve suum, sed sit in misericordia et 
ment affirmed V^^^^^^' defendant eat hide sine die are totally omitted, yet this 
accordingly. shall be amended. 

Raym.39.S.P- cited. Sid. 70. cited. [Where, in replevin, the defendant niade cognizance 
for rent in arrcar, and the jury fotind for him, and damages to the amount of the rent 

claimed 



3 Maule &S. 
591.; and see 
Tidd. 942. 
(9th edit.) 



Mellish V. 
Richardson, 
7 Barn. & C. 
819. The 
amendment 
was made in 
the record of 
King's Bench, 
and the case 
is now pending 
"before the 
House of 
Lords. 

Roll. Abr. 206. 
IJSee 8 East, 
357.11 

Roll. Abr. 205. 
In the award 
of a repleader 
for the error 



(G) ^/ tvhat Time the Amendment must be made, &;c. 221 

claimed in the cognizance ; but did not find either the amount of the rent in arrear, or the value 
of the cattle distrained, and judgment was entered for the damages assessed, he was permitted 
to amend his judgment, and to enter a. ]\idgmei\t pro retor no habendo. Rees v. Morgan, 3 Term 
R. 349.] 

If judgment is given upon a demurrer, and a writ of enquiry 3 Mod. 112. 
awarded, but in the entry thereof upon the roll, these words j)er 
sacramenium diiodecim prohorum et Icgalium liominum are left out, 
this shall be amended. 

In debt upon a muhiatus the judgment was entered up as of Salk. 50. 
Hil. term 1700, whereas the borrowing appeared to be 2 April phis. Par- 
1701. After error brought it was moved to amend the judg- ^ons and Gill. 
ment by the papei'-book signed by the Master, which was the 2d gg^^ c^. r. 
o^ Janumy 1700, and allowed to be amended ; for it is but a slip 117. 
of the clerk, who should have perused the paper-book signed by 
the master, which is authentic enough to amend by. 

But if there be a mistake or error in the judgment in any such Cro. Eliz. 497. 
matter in which the clerk has no instructions ; as if before the ' ^^' 
16 & 17 Car. 2. c. 8. a capiatur were entered for a misericord ia, 
or e converso ,- this was error in the judgment, because before the 
statute it made a fine to the king, and a difference in the execu- 
tion ; and there being no instructions in the record itself, or in 
the judgment-book, whereby to amend it, it did not appear 12 Mod. 104. 
whether it was the error of the clerk in the entering, or of the ^ ^^'- ^^^ym. 
court in giving the judgment, and therefore could not be amend- ,„)^'-f^(y([ 
ed (a) ; but may now by 16 & 17 Car. 2. c. 8. and the 5 W. & Carth. 167. 
M. c. 12. takes away the capiatur fine, in actions vi et ay-mis, 
therefore no capiatur shall be entered against the defendant, nor 
any thing in lieu thereof, {h) (*) Carth. 590. 

(G) At what Time the Amendment must be made : * 

and therein of Records removed out of inferior 
Courts, and paying of Costs. 

TT seems to be the established doctrine of the courts, to allow Salk. 47. pi. 1. 

the plaintiff to amend his declaration at any time(c), whilst (c) And by 

the cause is in paper, on payment of costs, and giving the de- Style's Pract. 

fendant liberty to alter his plea, because the pleading in paper plf^fntiff" * '*'• 

came in only instead of the ancient way of pleading ore tenus, and amend his dc- 

in pleading ore tenus the record was only mjieri ,- but after the claration, 

pleadings were entered on record, if it were not a record of the tliough it be 

same term, it could not be amended or altered. „„,. „"^^^*^u 

' past smce he 

declared, if it be but in paper, paying costs, or suffering tue defendant to imparl till the next 

term after. After plea pleaded, and the replication and rejoinder to part, and issue, notice of 

trial with proviso as to the other, and rule served to make up the issue to carry it down to 

trial, and the nisi prius roll ingrossed in parchment; all the proceedings above continuin-i' in 

Eaper, the plaintiff had leave to amend upon payment of costs. Faresl. 156. 8 Mod. 226. 
d. Rayin. 95. 1 IC. 134. 183. 548. Vide Salk. 47. pi. 3., where Holt said, that he had known 
an amendment made, not only after plea pleaded, but after the record was sealed up, just 
even when it was going to be tried. The defendant cannot amend his plea after issue joined 
or demurrer thereto; for by this he delays the plaintiff, which may turn greatly to his prdudice! 
Style's Pract. Reg. 49. Lord Raym. 669. 679. 683. Stra. 11. Salk. 179. Lutw. 1218.* 

* The courts have, in many cases, suffered the defendant, on payment of costs, and submit- 
ting to terms, to amend his plea after demurrer, and even after argument, where leave was 
prayed before judgment given ; i. e. where dcfcnilants had merits. 

If 



9A% 



AMENDMENT AND JEOFAIL. 



If the plaintiflf declares, and the defendant pleads, and the 
plaintiff replies, and the defendant demurs, and the plaintiff 
joins in demurrer; yet the plaintiff may move to amend oh pay- 
in*' of costs, if the cause be still in paper; so may he withdraw a 
demurrer not entered of record, and move to amend. 

But where the plaintiff declared against J. G. knight, the de- 
fendant pleaded in abatement he was a knight and baronet ; and 
the plaintiff' replied that he was knight, 4^c. on motion to have 
it amended upon payment of costs, all being in paper, and that 
the action being by bill the addition was not material; not being 
within the statute of additions it was: denied, there being nothing 
to amend by, and the defendant had taken (a) advantage of the 
fault. 



Salk. 50. 

Le|>cr»l ami 

Germain. 

(fl) Where, 

after a deimir- 

rer, the court 

cannot give 

leave to 

amend, tide 

Bulstr,204. 

March, 1. Yelv.38. Cro. Jac. 13, 14. Leon.28. Sid, 54. 107. Raym.231. 2 Vent. 142. sLev.39. 

2Bulst. 149. 3 Mod. 235. Ld. llayni.669. 679. 6 Mod. 265. 510. Fitzgib. 195. 2 Stra. 890. 

Barnard. K. B.408., where, after issue joined, or plea pleaded, and where not. Vent. 356. 

StyleR.33. 85. ; but see the last note to the first clause. [A mere clerical mistake in the 

return to a mandamus, may be amended after the return has been filed. Dougl. 130. Rex v. 

the Mayor, &c. of Lyme Regis. 1 Stra. 273. A declaration in quare impedit was allowed to 

be amended after the defendimt had craved oyer of the writ, and pleaded a variance between 

the writ and count. 2 Wils. 118.] 

3 Lev. 347. An action was brought by the master on the statute of Win- 

Be«ircroft v. ^^^^ f^^. ^ robbery committed on his servant, in which he de- 

Bamham and c'^J*ed of an assault and battery done to himself, (though then 
fifty miles from the place,) also that he made oath that he did not 
know any of the persons ; the issue was entered of record, and 
the jury appeared at the bar ready to try it, but being for other 
business adjourned to another day, the plaintiff observing his mis- 
take moved to amend, by declaring of a robbery on his servant, 
S)C. and it appearing that the year in which the action must be 
brought was expired, and consequently the action must be lost, 
if not allowed ; the court after long debate, and consideration of 
former precedents, admitted him to amend. 

So where in assumpsit an executor laid the promise to be made 
to his testator, and the defendant pleaded the statute of limit- 
ations, and on motion to amend and lay the promise to himself, it 
was objected, that this would alter the nature of the issue {h), 
and take away the party's defence ; yet it appearing that by the 
expiration of the six years the action would be lost, the court 
gave leave to amend. 



Stone. 



Hil. 4 G. 2. 
The Duchess 
of Marlbo- 
rough and 
Wigmore. 
Fitzgib, 193. 
2 Stra. 890. 
Barnard. K. B. 



408. (jb) If 

the issue shall be changed thereby there shall be no amendment. Lit. Rep. 349. Hetl. 164. 
Moo. 681. 2 Roll. R. 312. [Where an executor had pleaded a former judgment recovered, 
but by mistake had stated a less sum than the judgment was really for, the Court of C.P. 
gave leave to amend, though the record had been made up near three years ; but they at the 
«ame time permitted the plaintiff to reply -per fraudcni. Scutt v. Woodward, executor, 1 H. 
Black. R. 238.] 

If the bill on the file be with blanks, or the imparlance roll 
be with blanks for dates or quantities (c), yet it may be amended 
by the paper by the clerks themselves until a recordatur be or- 
dered of the verdict returned on the nisi prius roll ; but after 
such recordatur it can only be amended by the court (r/), for the 
roll lies with the prothonotary, to be made up according to the 
pat>er-book, until the recordatur of the verdict be allowed ; but 

if 



Lit Rep. 278. 
Cro. Jac. 142. 
365. 2 Leon. 
120. Hetley, 
142. Latch. 
164. 2 Mod. 
316. 12 Mod. 
8. 684. Stra. 



(G) At what Time the Amendment must be mcuky (§r. 223 

if after the rccordatur be entered, it is ordered on the roll in statu i^s- 2 Stra. 
quo tunc, and then the court is supposed to take cognizance of it, ?.''^* ^rr,*. 
in what manner it then was, and if the clerks might afterwards 2 Stra. 947. * 
aker the roll after entry of the verdict, they might amend it in (c) So in an 
the verdict which is on the nisi prius roll, and it cannot be altered ejectione 
but by rule of court. y»-«^, where 

•^ the bill was 

with blanks for the quantities of land and meadow. Roll. Abr. 207. 8 Co. 162. (d) Raym. 
55. S. P. 

The inferior court whence the record is returned, whether Cro. Eliz. 435. 
it be by the Common Pleas, or another court of record, may 459. 677. 
amend after iudgment, as well after as before a writ of error 2R0II. R.471. 

. • 8 C'O 162 

brought, and the rule of such amendment is to be certified by ^^q'j. 407. 

the clerk of such inferior court to the superior; for though the Hob. 327. 

record is removed by writ of error, and a mittimus recordu7n Hut. 41. Roll.! 

is entered on the roll, yet the writ of error is to send the record ^HV"^^' ^^^" 

..... 1 Salk 49 

in the state and condition in which it ought to be by law, and gjoiies 212. 

that is corrected from all misprisions of clerks; or on alleging ygTermR. 

diminution the record is to be sent up amended as it ought to be, 549. 7 Term 

or it may be amended in the superior court, if the other refuseth ; •^^'** 

for as it superintends such inferior courts, so it may correct the ^ Maule & s'. 

misprisions of the clerks of that court. 591. 5 Taunt. 

820. 5 Bro. & B. 66.JI 

But there is this difference, where the clerks carry the rolls Cro. Car. 410. 
of amendment to a superior court, and where diminution is 
alleged, and a certiorari thereon issues : for when the clerks bring 
up the roll, it appears to have been amended by the date of the 
rule after error brought; but when diminution is alleged, they 
bring up the record in statu quo the certim^ari finds it ; and there- 
fore when it is brought up they will intend it to be amended at 
the time of the judgment given, and that the transcript first sent 
up was a dimiiuition and a mistake ; and therefore if dower be 
brought against an infant, who appears and pleads by guardian, 
he ought not to be amerced, lor an infant cannot be amerced 
for his indiscretion ; nor a guardian, because he is appointed by 
the court : so this is error in the judgment itself, which is not 
amendable ; and if certified by the clerks of the court to have 
been amended after error brought, could not have been amended ; 
but yet certified to the certiorari rightly amended, they will sup- 
pose it was amended the same term judgment was given, and 
during that term, whilst matters are in^fieri^ they can rectify not 
only the misprision of clerks, but their own misti.kes. 

If a writ of error be brought, the defendant in error shall pay 3 Lev..")44, 
all the costs of the writ of error, because until the record was ftf '^'^'t^' 
amended, the plaintiff in error had sufficient reason to bring the uTicli's IVac. ' 
writ ; but then the plaintiff in error must nonsuit his writ ; tor if 772. (sth 
he proceed to reverse the judgment on any other error, there the edit.}|| 
defendant shall not pay costs for his amendment, because it is 
plain that the plaintiff did not depend on the error the defendant 
had amended. 

II Formerly it was holden, that where an indictment was re- Fan'kjier's 
moved by certiorari into the King's Bench, a mistake of the g^'^' ^^"^ 

clerk 



2U AMENDMENT AND JEOFAIL. 

clerk in certifying the caption might be amended in the same' 

term in which it was certified, but not afterwards. 

Rex V. Chris- But in a subsequent case, in 24 G. 3. the defendant being in- 

topher Atkin- Jjcted for perjury at the Middlesex sessions of oi/er and teiinijier 

r"orted in '" Fehnim-y ] 783, removed the indictment into the King's Bench 

1 Will. Saund. in Eastci- term following by certiorari. It was returned with a 

249.8. n.(i); caption not properly applicable to the sessions of oyer and ter^ 

and see also ininej\ or to the sessions of the peace, the caption stating, that 

Cro. ^^'fc. (t ^ fjeneral session o^ oiier and terminer hoklen, ike. before W. 
Compan. 400. ,_„*'„ . i'^, .. o ■ i . i ,i 

(9th edit.), ^' &c. &c esquM'es, and others, justices, d)X. assigned to keep the 

and The King peace, &c. and also to hear and determine divers felonies, tres- 
V. Darley, passes, and other misdemeanours, ^'c. Sfc. by the oath of G. C. 
^ ^74. ^^^ ^.^^ (naming them) good and lawful men, Sfc. Sfc.^' The defend- 
ant was found guilty on this indictment ; And in Easter term 
1784 Bearcroft moved in arrest of judgment, 1st, because it 
appeared that this was an indictment for perjury at common 
law found before justices of the peace, who have no jurisdiction 
in such case. 2d, That the names of the jurors did not appear 
on the record. Afterwards, in the same term, the Attorney 
General moved to amend the return to the certiorari, by insert- 
ing the commission of oyer and terminer; and names of the 
justices, according to the fact appearing by the commission, and 
by the minutes of the court, and that the caption might be 
amended agreeable to the return and by inserting the names of the 
jurors ; and it appeared by an affidavit of the clerk of the peace, 
and his clerk, and the crier, that the sessions of the peace, and of 
oyei' and terminer for Middlesex, were holden at the same place, 
and in the same court, but opened and adjourned by separate pro- 
clamations; the jurors under both commissions were the same 
persons ; that at the sessions, or soon after, entries were made in 
the sessions-book of proceedings at the sessions ; and that in- 
dictments under both commissions were put together on one file ; 
and that in making returns to writs of certiorari, it was the prac- 
tice to take the indictments off the file, and transmit them to the 
King's Bench. And if the indictment were under the commission 
of oyer and termitier, a printed form of caption, stating that com- 
mission, was prefixed to the indictment; if under the commission 
of the peace, a printed form of caption of the session of the 
peace was affixed ; that long before, and at the sessions when the 
bill was found against the defendant, the clerk of the peace was 
unable to attend from illness, and his business was executed by a 
junior clerk ; tliat eighteen justices were present, ten of whom 
were in the commission of oyer and tei-miner ; that the indictment 
was immediately entered in the rough calendar, and afterwards 
copied in the sessions-book; and when the certiorari was deliver- 
ed, the clerk through mistake took a return of the caption of 
the peace, and inserted the words oyer and termina; which he 
thought would make a proper return. Lord Mansjield in de- 
livering the opinion of the court, considered the return of the 
caption as a mere ministerial act, which, according to Philips v. 
1 Stra. 13G. Smith, was amendable at any time, and distinguished this from 
the cases cited for the defendant, since this was not a motion to 

amend 



(I) Of Amendments in Equiti/, 225 

amend the original caption, but only the returned caption : and 
as the names of the jurors and justices appeared on the original 
minutes, there was suflficient to amend by : and Rex v. Alcocic 
was a clear authority that wherever a transcript only was re- l Sid. 155. 
turned, any mistake therein may be amended by the original 
record ; and accordingly the rule for the amendment was made 
absolute; and judgment being given thereon, a writ of error was 
afterwards brought into the House of Lords, and the amendment 
assigned for error, but the judgment was affirmed by the unani- 
mous opinion of the judges then present, 11 July 1785.11 

(H) Where Records defaced by Design or Accident 
will be set right and amended. 

TF any part of the record be vitiated by razure, the court will RolLAbr. 208, 

restore it by amendment, because the wickedness of any per- ^09. Latch, 
son in corrupting the records of the court, ought not to obstruct p^^ ^ 1 95 
the justice of the court, or prejudice any of the parties; as in s.C. " 
ejectione firmcB {a)^ the lease was made tke 10th of Ma^; after (a) 2 Roll. R. 
verdict for the plaintiff it was made the 1 1th of May by a razure ; ^o, 8I. S. P. 
and it appearing to the court that the declaration M-as vitiated by thoueh^ob- 
such razure {h\ they amended it, both in C. B. and B. R. jected, that if 

the record should be amended, the delinquent could not be impeached for felony; for to make 
it so by the statute, the razure must be such that the judgment be defeated thereby. But,^er 
two judges, the razure of the record is the ofTence.and not the annulling the judgment thereby; 
and per 1 1 Co. 34. the razure of a record, by which an outlawry was made good, was held 
felony, {b) Where in a venire facias the word Chumley was razed and made Himly, and 
amended. Roll. Abr. 203. 

If an original writ, »upon which a common recovery of several sCo. 160. 
manors, S^c. was suffered, being larger than the other writs on Earl of Arun- 
the same file, through the negligence of the officer, and by con- ^^ ^^f \°^^ 
tinual handling, is so obliterated and worn out, that but a letter to"have been 
of the names of several of the manors can be seen, but the names adjudged by all 
of the manors are truly recited in the count, and in the habere the judges of 
facias seisinam, the original shall be amended according to the England, und 
other parts of the record. because fcomi 

mon recovery. And. 79, 80. S.C. adjudged by all the judges of England; and there is a notd 
by the reporter, that all the parchment remained entire, and if not, perhaps it might have been 
otherwise ; and vide And. 170. 

So if the original, or other part of the record, be stolen, taken 8 Co. 160. b. 
away, withdrawn, or avoided by any clerk, though this be felony 
per 8 H. 6. c. 12. §3. yet this may be supplied anli amended 
by the other parts of the record ; but if such part stolen, S^-c. or 
obliterated, cannot be supplied by the record, or any exemplifi- 
cation thereof, then it shall not be amended. 



[(I) Of Amendments in Equity. 



A 



BILL may be amended at any time for the special purpose ^^^^^ ^^^j^ 
of adding necessary parties. 15. I'pr.Al.* 

Cur. Cane. 546. Green v. Poole, 4 Bro. P. C. 1 22. l|See 1 Sim. 500. 1 M'Clel. 62. 1 3 Price, 
131. 2 Cox. 393. 1 Ves.jun. 142. 2 Younge & J. 512. 12 Ves. 48. But there is no instance 
ol a bill of discovery being allowed to be amended by adding parties as plaintiffs. 
3 Mcnr. 74.|| " o J B r r 

Vol. L Q ;_ After 



II 



22G AMENDMENT AND JEOFAIL. 



Mitf. Eq. Tr, After the examination of witnesses no part of the pleadings 
258. 263., and can be amended but under very special circumstances : but if 
the cases (cited j^^ witness has been examined, an amendment has been permitted 
in the note)ot ^ i i- .^- i * i 

Hastings V. after pubhcation passed. 

Gregory, Scac. 19th Nov. 1782., and Sanderson v.Thwaites, in Cane. Tr. 1 781. Anon. Barnard 
Ch.Rep. 222. Harding v. Cox, 3 Atk.583. Where a matter has not been put in issue by a bill 
with sufficient precision, permission has been given to amend it on the hearing of the cause. 
Filkin v. HUl, 2 Bro.P.C. 194. 

Earl of Mas- After appearance the bill cannot be amended without payment 

serene v. of costs, which are fixed at forty shillings, a sum which the i 

Lyndon, court will not exceed, notwithstanding repeated amendments, 

291. 1 Eq! unless the defendant state a case of particular oppression. 
Cas. Abr. tit. Amendment, p. 1. note. |lSee 2 Sim. & Stu. 1 13. 1 Sim. & Stu. 421. 6 Madd- 
314. 9 Price, 205. Coop. 141. See regulations as to allowance of time to amend, 19 Gen. 
Order, 3d April, 1828. 14 Gen. Order, same date.H 

Ld. Conings- An amendment to a bill has been permitted, after a demurrer 
^y J- ^'f I?" to the whole bill has been allowed ; but this seems not to have 
2 P. Wms. ' been strictly regular. 

300., and V. Baines, in the note. ||PlaintifF before filing replication may obtain an order 

for leave to amend bill as of course; but no further order but on special application, 13 Gen. 
Order, 3d Api-U, 1828. After plea allowed to part of bill, plaintiff cannot amend his bill with- 
out special order to be obtained on notice of motion shewing proposed amendments. 2 Sim. 
& Stu. 12. After replication and subpoena to rejoin, plaintiff cannot amend bill without special 
application, shewing that using all possible diligence he was not in a condition to apply sooner. 
6 Madd. 106. ; and see 4 Madd. 268. As to a second order to amend, see 1 Russ. & Mylne, 
p. 1. 79. 80, 81.|| 

Naoierv Ladv ^"^ there seems to be no precedent of an amendment to a bill, 
Effingham, i^ ^ part wherein it was dismissed on the merits.] 
2 P. Wms. 401. 

lRussell,353. Ijit is not necessaiy to amend a bill for the purpose of in- 
troducing facts disclosed in the answer, on which the plaintifi' 
means to rely as parts of his ease, entitling him to the relief 
which he has prayed. 

Ibid. 154. On the hearing of a petition of appeals presented by the de- 

fendants, leave was given to the plaintiffs to amend their bill, 
by making it either a bill and information, or an information. 

Taylor v. After plea of settled account allowed of bill a motion to 

Shaw, 2 Sim. amend the bill, by stating facts which tended to shew there wa.s 

& Std 12 ^ ' J o f 

no stated account, or that plaintiff ought to be allowed to sur-j 

charge and falsify, was refused with costs. 

Sharp V. Ash- The plaintiff, in a bill for an injunction, must state at once the 

ton, 3 Ves. & whole case within his knowledge : but the court, though verv 
B. 144.; and • i c i • i " . ,. , . . ' . '^ , " 

see 12 Ves. jealous or amendments without prejudice to the injunction, under 

458. 3 Madd. circum Stances, permitted even a re-amendment, ascertaining 

475. 6 Madd. precisely its nature, and bv clear and positive affidavits that 

^M^'ifl!"^ the plaintiff had not a knowfedge of the facts enabling him t) 

2 Madd. 471. ,. \.\. , i i ° 

2 Ves. & B. P"^ ^"^^ ^^^^ ^^ "^^ record sooner. 

330. 13 Price, 494. 2 Sim. 14. , 

Holmes v. "^^^^ amendment of a demurrer was allowed under special cu-{ 

Waring, cumstances, and a mistake. 

8 Price, 604.; and see 4 Madd. 207 1 1 Ves. 68. j I 

Lowten v. And so also mistakes in the title of an order of sequestrati(^ij 



(I) Of Amendments in Equity. ^fSTl 

by omission of the words "and others" were allowed to be Mayor of Col- 
rectified by inserting the words omitted. sMeriv 395 • 

and see 8 Price, 606. 1 Sim. & Stu. 94. 

And so a plea good in substance but bad in form may be Merewether v* 
amended. Mellish, 

13 Ves. 435. ; and see 1 Sim. & Stu. 220. 1 Price, 236. 

But leave to amend a plea is not of course ; the amendment y^^^^ ^ 
must be stated. || Strickland, 

2 Ves. & B. 150.; and see 2 Younge & J. 37. 

[Where an improper submission was made in the bill of an in- Serle v. St. 
fant, the court allowed it to be amended on the hearing of the ^^J Ige. 
cause. 

Where an answer was prejudicial to a defendant from a mere Countess of 
mistake, though such mistake was both in the original and office Gainsborough 
copy, upon evidence of the mistake, an amendment was permit- ^•^^^'"^' 
ted after the cause had been heard, and after it had been denied ^^ this case ^^' 
on a petition and on a motion. the draught 

was correct; but where the mistake runs through the draught and the engrossed answer, no 
amendment will be allowed. Bishop of Ely v. James, Bunb. 295. 

There are no certain rules respecting the amendment of Woodgate v. 
answers ; but they are in the discretion of the courts. The ad- ^"^'^''' P^^" 
mission of a fact is never allowed to be struck out (a), but on an ^^ j ^ ' q^ 
affidavit of surprise, or the defendant being ill advised. But Abr. tit. 
where an amendment is admitted in the bill {b\ where, through Amendment, 
inadvertency a mistake is made, as to a fact or date (c), where P- ^- (") ^^^|p 
there is no danger of perjury (rf), where the case depends upon ^ p.Wms.297'. 
old documents, lies pretty much in the dark, and new matter is Pearce v. 
discovered, which affords the defendant a good defence; the Grove, 3Atk. 
courts have allowed amendments to be made, either by striking ^^' f^Vp'.K-^* 
out passages, or making new facts, and this after issue joined (e), ^' j^jjj g g^.^^ 
or upon the hearing of the cause. If new matter has arisen, the p. c. 194. 
practice is to add it by way of supplemental answer; for the de- (c) Wharton 
fendant will not be permitted to take the old answer off the file, g'^X'^^"^"* 
and put in a new one.] (^^ Berneyv. 

Chambers, Bunb. 248. Holliday v. Nabb, Bunb. 323. (e) Phillips v. Gwynne, cited in Mitf. 
Eq. Tr. 261. But the author adds, that in later cases this indulgence has been refused. How- 
ever, in the case of Moggridge v. Hudson, the Court of Exchequer thought that there were 
many cases in which it was highly necessary that it should be given. In that case Richards 
moved to file a supplemental answer to a bill for an account of tythes, upon an affidavit of 
the discovery of new matter. The motion was opposed by Abbot, who insisted that it was 
the rule of the court not to suffer a supplemental answer to be pu; in after issue joined. The 
Chief Baron admitted the general rule to be as Abbot stated; but said there were many 
exceptions to it. That if they were to refuse it, another bill might be filed for an account, 
and then it might appear that the plaintiff ought not to have had a decree in this instance, by 
reason of the matter now offered ; that tythe cases were entitled to peculiar indulgence, 
depending upon old documents, and lying in remote antiquity. Perryn B. added, that he had 
known many instances of supplemental answers being allowed in similar circumstances ; but 
supposing there were no precedent, the motion seemed so reasonable and so necessary, that 
the court ought to make one. Easter Term, 34 G. 5. Where the amendment is not in a very 
material point, it may be made without notice ; but where it is, it cannot be made without 
notice, and also payment of costs. 1 Harr. Ch. Pr. 307. 

HThe practice formerly was, to permit the amendment of an Wells v. 
answer in case of mistake : now a supplemental answer is put in. Wood, loVea. 

Q 2 But 401. 



Q2S 



ANCIENT DEMESNE. 



1 



But where there is a mere mistake in a name the answer has 
been allowed to be taken off the file and resworn. || 



Dolder 
V. Bank of 
England, 

10 Ves. 285. Jennings v. Merton College, 8 Ves. 79. Strange v. Collins, 2 Ves. & B. 163. Tay- 
lor V. Obee, 3 Price, 83. ; sed vide 1 Madd. 269. Griffiths v. Wood, 1 1 Ves. 63. 

Earl Vemey v. [An answer shall not be amended after an indictment for per- 
Macnainira, jury preferred or threatened. Yet if there were circumstances 

1 Bro. Ch.R. extremely strong to shew that it was only a mere mistake (a), it 
V. Lord might be otherwise. 

Waltham, cited, Ibid. Woodgate v. Fuller, Barnard. Ch. R. 51. Wharton v. Wharton, 

2 Atk. 294. 

Striidwick v. An infant may amend his answer when he comes of age, and 

Pargiter, therefore no exceptions can be taken to it. 

Biinb. 338. . ^ 

Griells v. Gan- Where it appears that either the examiner is mistaken in taking 
sell, 2 P. Wins, a deposition, or the witness in making it, it may be amended 
646. ||See after publication. 

1 Cox, 281. 

3 Swanst. 357. 1 Bligh N. S. 225.|| 

Speering v. A mistake in the title of an order was allowed to be amended, 

- "" p^ Ph"' t'^ough for the purpose of charging a surety, who had entered 
115. S. C. ^^^^ ^ recognizance to abide the order of hearing. 

1 Eq. Cas. Abr. tit. Amendment, p. 6. S. C. ||See 2 Meriv. 395. 8 Price, 606. 1 Sim. & 
Stu. 94.|| 

White V. Where there was a mistake in the title of the interrogatories, 

Taylor,2Vern. neither the depositions were permitted to be read, nor the title to 
Abr tit ^ ^ ^^ amended, though most of the witnesses wer 



Abr. tit 
Amendment, 
pi. 7. S.C. 



But qu.'] 



were gone abroad. 



ANCIENT DEMESNE. 



(A) The Nature of the Tenure, and how proved. 

(B) Of the Privileges annexed to Ancient Demesne. 

(C) How it may become Frank-fee. i 

(D) Where Ancient Demesne may be pleaded, and the 

Form thereofl 



4 Inst. 269. 
2 Inst. 542. 
F.N.B. 14. 
Salk.57. pi. 2. 
Black. Tr. 4to. 
218.231. 
(6) Lands 
which are next 
■or most conve- 
nient to the 



(A) The Nature of the Tenure, and how proved. . 

^A LL those lands which were in the possession of Edward the 
Confessor, and afterwards came to William the Conqueror, 
and were by him, about the 20th year of his reign, set down in 
a book called Doomsday, under the title De Terra JRegis, are (b) 
ancient demesne lands ; these were exempt from any feudal ser- 
vitude, and were let out to husbandmen to plough and cultivate 
for supplying provisions and necessaries for the king's household 
and family ; and for this purpose the tenants (who are called by 

Bractoiii 



(B) Of the Privileges annexed to Ancient Demesne, " 229 

Bracton, villani privilegiati) enjoyed certain privileges, and the lord's mansion- 
tenure itself had several properties distinct from those of other house, and 
tenures, which it retains to this day, though the lands be in the which he 
hands of a subject, and the services changed from labour to own hands,* 
money. for the sup- 

port of his family, and for hospitality, are called his demesnes, but have not the same properties 
with ancient demesne. Spelm. 12. 

This tenure, my Lord C.J. Holt says, is as ancient as any Salk. 57. pi. 2. 
other, though he supposes that the privileges annexed to it com- 
menced by'some act of parliament, for that it cannot be created 
by grant at this day. 

The lands which were in the possession o^ Edward the Con- Salk,57. pi. 2. 
fessor, and were given away by him, are not at this day ancient 4 Inst. 269. 
demesne ; nor are any others, except those writ down in the book Hob. I88. 
of Doomsday; and therefore, whether such lands are ancient (J°vhere^the 
demesne, or not, is to be (a) tried only by that book. book of 

Doomsday was brought into court by a certiorari out of Chancery, directed to the treasurer and 
chamberlain of the Exchequer, and by viittimus sent into the Common Pleas*, issue was taken 
whether Longhope in the county of Gloucester, was ancient demesne or not ; and on pro- 
ducing the book of Doomsday, it appeared that Hope was ancient demesne, but nothing said 
of Longhope: and the court held, that the party failed in his proof. Lev. 106. Sid. 147. 
[Proof of the name being varied cannot be admitted, without its being averred on the 
record. Jbid. Bull. Ni. Pri. 248. (4th edit.) Doomsday-hook will not shew whether the 
lands themselves are ancient demesne ; it will only shew whether the manor is so or not. 
2 Burr. 1048.] 

[* The authority referred to for this passage is Dyer, 150.b. ; but the editor has not been 
able to find any thing to this effect, either in that page, or in any other part of that book. 
The writ in the register does not require the production of the book itself, but only a 
certificate of the fact from the treasurer and chamberlain of the Exchequer. F. N.B.I 6. 
C. (9th edit.)] 

But if the question is, Whether lands be parcel of a manor g^jj^ ^^ , ^^ 
which is ancient demesne? this shall be tried by a jury. Where an acre 

of land may be ancient demesne, though the manor of which it is parcel is not so, vide Roll. Abr. 
321., and for this «i(/<?F. N.B.I 4. Leon, 252. Dyer,8. 11 Co.- 10. Bro. Ancient Demesne, 15. 
sLeon. 191. 3Lev,405. 

(B) Of the Privileges annexed to Ancient Demesne. 

"jV/TY Lord CoJce enumerates the six following privileges which 4 Inst. 269. 

tenants in ancient demesne are to enjoy. (^) 1. That they ^'^f ^^i'v.^^'^V 
shall not be empleaded for any of their lands, Sfc. out of the said ^^^^^ appear 
manor, but are to have justice administered to them at their own first that the 
doors, by by petit 'writ of droit close, directed to the bailiFs of the land is ancient 

king's manors, or to the lord of the manor, if it be in the hands demesne; for 
c r,- ^ Ma fine levied 

of a subject. ^ of those lands 

in C. B. be still in force, the lands are frank-fee till it is reversed ; and therefore may be em- 
pleaded at common law. 2. The land must be holden of the manor, being ancient demesne. 
3. It must not be holden by knight-service, because husbandry is the cause of the privilege. 4. It 
is is said that the tenant may remove the cause out of the lord's court, if there be no suitors, 
or but one suitor, for that the suitors are judges; otherwise there would be a failure of justice. 
5. If the tenant accept a release of his lord of his seignory, or the seignory be otherwise ex 
tinguished, by reason of the seisin of the king or otherwise. 6. Or if the lord disseise his 
tenant, and make a feoffment in fee. 7. If the lord gi-ant the services of his tenant, and the 
tenant attorn. 4 Inst. 269. Also if the manor and demesnes of the manor are in dispute 
they nmst be empleaded at common law, and not in the lord's court j otherwise the lord, 
would be judge in his own cause. Salk. 56. pi. 1, 

Q « 2. Tbey 



230 ANCIENT DEMESNE. 

4 Inst. 269. 2. They cannot be impannelled to appear at Westminster, 

That they may qj. elsewhere in any other court, upon any inquest or trial of any 
havea^vritrfe 
non ponendxs in ^ 

atsitts etjuratis against the sheriff, or any one who hath the return of writs ; and if, notwith- 
standing such writ, the sheriff will return them, they may have an attachment. F. N. B. 166. 

, 3. They are free and quiet from all manner of tolls in fairs and 

Roll. Abr. 521. markets, for all things concerning (a) husbandry and substance. 
b. P. (a) But this privilege does not extend to him who is a merchant, and gets his living by 
buying and selling, but is annexed to the person in respect of the land, and to those things 
which grow and are the produce of the lands. F.N. B. 228. 2 Leon. 191. Cro. Eliz. 227. 
Leon. 231. 233. 2 Inst. 221. S. P. Vide 2 Lutw. 1144. and how it must be set forth in 
pleading ; and that this privilege extends to tenant in ancient demesne, whether he hold in 
fee, for life, years, or at will. Roll. Abr. 322. 2 Leon. 191. [Qa. as to tenant for years, or 
at will ; and see 2 Burr. 1047.] 

4. They ai'e to be free of taxes and tallages by parliaments, 
4 Inst. 269. 1 *!, "^ u -11 A b J f 

That regulariy unless they be specially named. 

all general acts of parliament extend to ancient demesne lands, vide 4 Inst. 270. And 71. 

4- Inst. 269. 5. That they were not to contribute to the expenses of knights 

of parliament. 
4 InsL 269. 6. That if they be severally (b) distrained for other services, 

{b) Where the than they are obliged to by the custom of the manor, they all, 
tenants m an- ^^^ ^^iq saving of charges, may join in a writ of monsti'avei'unt, 
are distrained albeit they be several tenants. 

to do the lord other services or customs than they or their ancestors have formerly done, they 
may have a writ of monstraverunt directed to the lord, commanding him not to distrain for 
other services; and if he will still distrain, &c. then, by a writ directed to the sheriff^ he may 
command him not to demand or distrain for other services ; and if he still persists, then he 
may raise the posse comitates, or command the neighbours to rescue and destroy the distress ; 
but the usual course is, that if, after the writ to the sheriff, the lord will distrain, then an 
attachment lies against him, returnable in one of the courts of record at Westminster, to 
answer the contempt. Plowd. 129. 

4 Inst 270 Land in ancient demesne are extendable upon a statute-mer- 

Moor, 211. chant, staple, or elegit. 

S. P. Lands in ancient demesne, upon an elegit, may, by the sheriff, be delivered in execution, 

because the title of the land is not directly put in plea in the king's court ; adjudged. Hob. 

47. Moor, 211. pi. 351. and Brownl. 234. S. C. 

Vent. 244. In an indictment for not taking upon him and executing the 

office of a constable, to which he was chosen by the leet, the 
question was, Whether a tenant in ancient demesne was obliged 
to execute that office ? and the court held he was. 

(C) How it may become Frank-fee. 

4 Inst. 270 JF a fine be levied, or recovery suffered of lands in ancient 
7°H 4.44*. demesne, this makes them frank-fee. 

Roll. Abr. 327. .-^"^ ^^ ^^^ ^o^'^ be not a party, he may (c) have a writ of dis- 
(c) But cannot Celt, and avoid the fine or recovery [d) ; for lands in ancient 
bring a. scire demesne were not originally within the jurisdiction of the courts 
"STa'paSTto ^^ Py^i^insta- : but the tenants thereof enjoy this among other 
the fine or re- Privileges, not to be called from the business of the plough by any 
covery. 3 Lev. foreign litigation. 

419. T)iat a termor may have a writ of disceit, and make it ancient demesne, at least during 
nu term. KoU. Abr. 327. {{d) An action on the case, in the nature of disceit, to reverse a 

locovery 



(C) Ho'w it may become FranJcifee. 231. 

recovery of lands in anciertt demesne, was brought against the vouchee only, as cestuy que uscy 
which was confessed by the plea. On motion to enter up judgment, the court refused it, 
because all the parties to the recovery were not before them ; and the vouchee not appearing 
to be cestuy que use, otherwise than by his own acknowledgment, there was danger of col- 
lusion between him and the lord of the manor, to reverse a recovery of land in frank-fee, and 
so turn it into ancient demesne. Rex v. Hadlow, 2 Black. R. 1170- Fide Rex v. Mead, 
2 Wils. 1 7i The lord is not barred of his writ of disceit by the death of any of the parties to 
a fine. Zouch v. Thompson, 1 Ld. Raym. 177.] 

But if the lord be party, then the lands become frank-fee, and 2 Roll. Abr. 
are within the jurisdiction of the courts of Westminster; for the ^\^' ^^^^'^'^^ 
privilege of ancient demesne being established for the benetit of 
lord and tenant, they may destroy it at pleasure. 

If a fine be levied of lands, part ancient demesne, and part Keilw.43. Roll. 
frank-fee, and the lord brings a writ of disceit, the Court of B. R. ^^'"- '^'^^• 
upon view of the transcript of the record, and proof that part are 
ancient demesne, will reverse and avoid the fine as to that parcel ; 
but they will not order the fine to be torn off the file, as in cases 
where the whole fine is reversed, because it shall stand good as 
to the frank-fee ; but they will order a mark to be made on the 
fine, to signify that it is cancelled as to that part ; and in this case 
the terre-tenant must be made party by scire-facias ; for otherwise • 
the conusance of him that was party to the fine shall not bind, if 
the tenements are frank-fee ; because by that means the terre- 
tenant might be dispossessed without notice ; whereas if he ap- 
pears upon the scire facias^ he may plead a release or confirm- 
ation in bar, and to preserve his possession. 

But if a fine be levied of land all ancient demesne, and the lord p^^ jjj •p^^J^^ 

reverse it by writ of disceit, it seems doubtful from the books, loi, 17 e. 3. 

whether the fine shall stand good between the parties ; some say, si- F.N.B. 98. 

that it ought not to be wholly set aside, nor the conusor restored ^"p^j n^Jl 

to his land against his own solemn acknowledgment on record, ^^ ggj ^j.^' 

especially since the lord, who brings the writ of disceit, seeks Eliz. 471. 

nothing but to restore the land to the privileges of ancient (a) But if after 

demesne (a); others, on the contrary, hold, that the writ of dis- Jhe fine levied, 

ceit, and the reversal thereon, wholly avoids the fine, and re- ^^j released to 

stores the conusor to the possession of the land ; and the conu- the conusee 

sance, though on record, shall be no estoppel ; because it was and his heirs, 

made in a court that had no iurisdiction of the matter: and of confirmed 
^1 f. ^1 1 , ,. "^ . ,. ' his estate, he 

tnererore the whole proceedmgs coram nonjudice. should have 

retained the lands, notwithstanding the fine was destroyed; because by the release or confirm- 
ation, his estate would have been made firm and rightful. 4 Inst. 470. 10 Co. 50. Fitz. 
Disceit, 57. Leon. 290. If tenant in tail of lands in ancient demesne, leases for sixty years, 
and after levies a fine, with proclamations, in the Common Pleas, h.id this is after reversed in 
a writ of disceit, yet, quoad the lessee, this fine shall not be avoided, but shall make the lease 
good against the issue in tail, by the better opinion of the books. Leon. 290. vide Lutw. 710, 
711. 

If in a writ of right in ancient demesne the tenant pleads in F. N. B. 19. 
abatement of the writ, and by judgment it is abated, and the "* ^"*'- ^'^°' 
demandant brings a writ o^ false judgment^ wherein the writ of 
right is affirmed to be good, the Court of Common Pleas shall 
proceed as the inferior court should have done; and although 
judgment be there given to recover the land, yet the land is not 
frank-fee, but continues ancient demesne, because the beginning 

Q 4 and 



232 ANCIENT DEMESNE, 

and foundation of those proceedings was in the court of ancient 

demesne. 
Roll. Abr. 324. If the lord enfeoffs another of the tenancy, this makes the land 

frank-fee, because the services are extinguished perpetually. 
FfrfeRoll. Abr. go if the lord releases to the tenant all his right in the tenancy, 
824, 3'25. and ^^ jp j^^ confirms to him to hold by certain services at the corn- 
cases there '"O" ^^^t these make the land frank-fee. 

cited out of the year-books, and where it becomes frank-fee, by coming into the hands of the 
yog. 



(D) Where Ancient Demesne may be pleaded, and the 
Form thereof 

TN all actions,"wherein, if the demandant recovers, the lands 
Roll Abr 322 would be frank-fee, ancient demesne is a good plea, 
"Where the suits may be removed to the courts above, and they to proceed as the inferior 
court might have done, vide F. N. B. 19. (D). 4 Inst. 270. Moor, 451. 

Vide 4 Inst. Therefore in all actions real, or where the realty may come in 

270. Roll. Abr. question, ancient demesne is a good plea ; as assize^ writ of ward 
o2^,o . qflandy writ of account against a bailiff of a manor, writ of ac- 

count against a guardian, Sj-c. 
Godb. 64. In replevin ancient demesne is a good plea, because by intend- 

Bulstr. 108. ment the freehold will come in question. 
Owen, 28. ^ 

S Co. 105. In an ejectione ^rmce, ancient demesne is a good plea ; for by 

Hob.47. Bulst. common intendment the right and title of the land will come in 

Oo EUz 826! question ; and if in this action it should not be a good plea, the 

2 Roll. Rep. ancient privileges of those tenants would be lost, inasmuch as 

181. Hob. 47. most titles at this day are tried by ejectment. 

5 Co. 105. But in all actions merely personal, as debt upon a lease, tres- 

RoU. Abr. 322. jffigg quare claumm, f regit, S^c. ancient demesne is no plea. 

Cro. EHz. 826. In trespass contra pacem, though the realty comes in debate, yet 

Roll. Abr. 322. ancient demesne is no plea ; for this is at the suit of the king, and 

punishable for the good of the commonwealth. 
2 Inst. 397. In an assize by tenant by statute-merchant, ancient demesne is 

Hob. 48. no good plea, because the plaintiff does not demand the freehold, 

but till he hath satisfaction. 
Roll. Abr. 323; In a quai-e impedit ancient demesne is no plea, because if it 
Hob. 48. should be granted there would be a failure of right, for there 

they cannot grant a writ to the bishop. 
2 Inst. 306. So in an action of waste ancient demesne is no plea, because in 

4 Inst^^Vo ancient demesne they cannot, upon the distress returned, award 
Roll. Abr. 323. ^ w"t to enquire of waste, according to the statute ; for the 

sheriff ought by the statute to go in person, which cannot be 

supplied by their officer, and so there would be a failure of right ; 

but in this the land shall not be frank-fee. 
F.N.B. 11. If the manor and demesnes thereof are demanded, ancient 

c'i'^r:.^^/'. <^emesne is no plea, because the lord would be judge in his own 

Show. 271. 

Ancient 



ANNUITY AND RENT-CHARGE. 233 

Ancient demesne may be pleaded after imparlance, because Dyer, 210. in 
the lord may reverse the judgment by writ of disceit; and it goes margin. Stile, 
in bar of the action itself, viz. in that court, because it is coravi ^^^^^ ^^j^ ^^' 
nonjudice. Where the de- 

fendant in ejectment pleads ancient demesne, he need not make any defence by adding defendii 
vim et injuriam suam. Carth. 220, Show. 3S6. Salk. 217. Vide Doct. PI. 51, 52. Roll. 
Abr. 322. and tit. Pleas and Pleadings. It may be pleaded without affidavit. 2 Ld. Raym. 
1418. Barnard. K. B. 7. [But see contr. 5 Wils. 51. 2 Burr. 1047. And the affidavit must 
shew that the lands are holden of a manor, which manor is itself ancient demesne; that the 
matter can be tried in the court of the manor, that there are suitors there, and that the plain- 
tiff hath an estate of freehold. 2 Burr. 1047. 8.] 



ANNUITY AND RENT-CHARGE. 



AN annuity, strictly taken, is a yearly payment of a certain Co. Lit. 144. b. 
"^ sum of money granted to another in fee-simple, fee-tail, pj"^j^_ j^j^^. ^^^ 
or life or years, charging the person of the grantor only: if pay- Doct. and 
able out of lands, it is properly called a rent-charge ; but if both Stud. Dial. 2. 
the person and estate be made liable (a), as they most commonly '^'^^'^' ^' ^* 
are, then it is generally called an annuity. annuity in fee 

granted by the crown out of the 4i/. per cent, duties payable for exports and imports at Bar- 
badoes, is merely a personal inheritance. Earl of StralFord v. Buckley, 2 Ves. 170. And 
so, as Lord Hardwicke said, in giving his judgment in that case, is an annuity out of the 
p()st office or excise. Co. Lit. 20. a. n. 4. (14th edit.); and as such, the former has been 
treated by Lord Thurlow. Lady Holdernesse v. Marquis of Carmarthen, 1 Bro. Ch. R. 277. 
A rent created out of a rent is a mere annuity. Per Lord Hardwicke, 2 Ves. 178. 

As an annuity may be granted in fee, it may, of course, as a conditional or qualified fee : 
but it cannot be entailed, being, in point of charge, strictly personal ; Co. Lit. 20. a. : there- 
fore a remainder cannot be limited over of it, as it may of a rent-charge ; Turner v. Turner, 
1 Bro. Ch. R. 316. Weeks v. Peach, 2 Lutw. 1218.; except in a grant by the king, 2 Ves. 
181.; but when granted to one, and the heirs of his body, if the condition is performed by the 
grantee's having issue, the estate becomes absolute, and alienable without restriction ; and 
this, it seems, though the grantee never come into actual possession. 1 Bro. Ch. R. 316. 
Ambl. 776. S. C. It is not the subject of a fine or recovery, Sheph. Touchst. 11. Pig. 97# 
1 Ves. 391.; but passes by mere grant or transfer. 1 Bro. Ch. R. 377. There can be neither 
courtesy, nor dower of it. Co. Lit. 144. b. Poph. 87. Moor, 83. It is not within the 
mortmain act of 7 E. 1. stat. 2. Co. Lit. 2. b., nor the provisions of the statute of frauds, so 
far as they affect real property. 2 Ves. 170. It is not assets in the hands of the heir, because 
not comprised within the description either of land or tenements : not of executors, because 
its heritable quality prevents it from going to them. Doct. and Stud. c. 30. p. 97. 2 Ves. 179. 
But an annuity of inheritance is forfeitable, as an hereditament, for treason. Nevil's case, 
7 Co. 34. b. it is assignable, and in most cases, though assigns be not named in the grant. 
Co. Lit. 144. b. Gerrard v. Boden, Hetl. 80. If granted by the king, it must be granted out 
of some branch of his revenue, for the royal person is not chargeable. Anon. 1 Salk. 58* 
(«) Whether the one or the other shall be liable, is in the election of the grantee ; which 
election, when once distinctly made, is final and conclusive. Co. Lit. 144. b. Lit. (J 219r 
Ambl. 782.] 

(A) How an Annuity or Rent-charge differs from 

other Rents. 

(B) What shall be a good Grant or Creation thereof. 

. (C) Of 



234 ANNUITY AND RENT-CHARGE. 

(C) Of the Remedies for the Recovery of an Annuity. 
[(D) Of the Provisions made by the Legislature re- 
specting Life Annuities.] And herein, 

U 1 . /« "what Cases a Memorial is necessary, 
2» Of the Form and Contents of it. 
3. Of vacating and setting aside Annuities.\\ 

Apportionment and Extinguishment of an Annuity or Rent- 
charge, vide head o£ " Rents." Vol. VII. 

(A) How an Annuity or Rent-charge differs from 
other Rents. 

Lit. § 218. A Man seised of land grants, by deed-poll or indenture, a 
vide for this yearly rent to be issuing out of the same land to another in 

head of i?«j/*. ^^^^ -^^ ^^^^ ^^ ^^^ life, 4-c. with a ^^xxsq oi distress ; this is a 

rent-charge ; and if the grant be without clause of distress, then 

it is a rent-seek. 
Vent. 161. Co. A rent-service is an annual return, made by the tenant, either 
Lit. 142. in labour, money, or provisions, in retribution for the land that 

passes. 

Lit. $214,215. If a man makes a feoffment in fee, or a lease for life, or a 

2 Inst. 505. gift in tail, remainder over in fee, upon such grants there can be 

,?u' ^^^'u ^ no rent-service reserved at this day, the feoffor or grantor having 
(n) For without . iirm "^ ii° o P 

such clause it "^ reversion, and the teofree or grantee by the statute of quia 

is only a rent- emptores terrarum holding of the capital lord ; therefore if in 

seek. Whether such deeds a rent be reserved, there must be a clause of distress 

!*f L'i!*^'^^ "j inserted (a) ; and this will make a good rent-charge, the land 
ation be good ,. i^'^i., ,. o ^ ^ r ■ ^ 

in a deed-poll oeing criarged with a distress for the payment of it. 

has been doubted, the words of reservation proceeding entirely from the feoffor or donor ; 
but it seems now settled, that such reservation is good in a deed-poll, because whoever claims 
an estate under any deed, ought, in reason and equity, to be obliged to take it under the 
terms expressed in the deed. Vide Co. Lit. 145. b. 2 Roll. Abr. 449. Plow. \34. Gilb 
Rents, 16, 17. 

Co. Lit. if7.b. If a man grants a rent out of three acres, and grants over* 
• • that if the rent be arrear, that he shall distrain for the rent in one 
of the acres, this is one entire rent ; but it cannot be a rent- 
charge for the whole, because the greatest part of the land out 
of which it issues, is not chargeable with any distress for the 
recovery of it; and denominatio sumenda a major i ; therefore it 
is taken to be a rent-seek, for which, by the words of the grant, 
the grantee may distrain in the third acre; for whenever the 
remedy, by way of charge for the rent, is not commensurate to 
the rent, the rent is called seek, and the charge is only appur- 
tenant to the rent, and does not give it its denomination ; and 
the reason is, because if such original grant should be lost and 
worn out by time, and a man were to prescribe for it, if he were 
to give it the denomination of a charge, it would grasp more 
land than was originally intended to be charged ; and therefore 
*■ the 



(B) What shall be a good Grant or Creation thereof. 235 

the law binds them down to the denomination of the rent, as seek, 
and to set forth the charge as an appurtenant, that by length of 
time no more should be comprehended in the charge than was 
originally intended in the grant of that charge. 

If a man grants a rent out of his lands to J. S. and his heirs, Co.Lit. 147. b. 
and grants that he may distrain for it during his life, this is a 7 Co. 23. b. 
rent-charge in J. S. because he may distrain in the land, out of If a rent be 
which it issues, during his own life ; but it shall be seek in the IJfdtheirVeh? 
hands of his heirs, because by the express words of the deed, the outofoneacre 
remedy was to cease upon his death ; alifer if the distress had and that it 
been limited only for years, for then the entire rent had been seek, shall be lawful 
because the remedy being temporary is not adequate to the right, ^^^y^-^^ heirs^to 
which is perpetual. distrain for it, 

this is a rent-sech ; and the distress given to one is only an appurtenant to the rent ; but if he 
to whom the distress was not limited dies, the survivor shall distrain, because the whole rent 
is then in him. Co. Lit. 147. 7 Co. 23. b. 

(B) What shall be a good Grant or Creation thereof. 

TF a man obliges himself to J. S. in an annual rent of lOZ. per ^ Roll. Abr. 
cipiendiim annuatim de manerio de D., and bindeth the said 424. For in 
manor, and all the chattels therein, to a distress, this amounts to nnany cases, 
a good grant of the rent, and J. S. may distrain for it. of granting 

the law creates a rent-charge, because it is the design of the law to render all contracts bind- 
ing and effectual, so far as the intention of the parties may be gathered from the deed ; and 
such interpretation is made strongest against the grantor, because he is presumed to receive a 
valuable consideration for what he parts with. ||That a grant oi annuity must be by deed, and 
must contain words of present grant, otherwise the grantee cannot sue at law. See 14 Ves. 
491. 2 Dow, & Ry, 60fi.ll 

So if I bind my goods and lands to the payment of a yearly Co. Lit. 147. a. 
rent to J. S., this is a good rent-charge, with power to distrain, ^ ^ p" ^ 
though there be no express words either of grant or distress ; or ^4 ' 
if I grant that if such a rent be arrear, that J. S. shall distrain 
for it in the manor of Z)., this is a good rent-charge, for in all 
these cases it is evidently my intention that my land be liable to 
the charge. 

So it is if I grant to S. S. that he and his heirs, or the heirs Co.Lit. 147. a. 

of his body, shall distrain for 405. rent in my manor of Dale; ,n \,^V,1 
, . . •' , , , • n ' Ml 1 ^ Roll. Abr. 

this IS a good rent-charge m tee or in tail, because the power 424. 7 Co. 23. 

of distraining is in one case given to the heirs general, and in the Butt's case, 
other to the descendants of the body of S. S. ; and whoevef has a 
power of distraining, has an estate in the rent for which the 
distress is given. 

But if I grant a rent of 405. out of the manor of Dale, and ^ Roll. Abr. 
if the rent be behind, that the grantee shall distrain in my manor j^^' ^ °" q 
of Sale, this power of distress in the manor of Sale shall not 23. * * 
amount to the grant of a rent-charge out of the manor of Sale ; 
for though in the former cases such construction is admitted to 
support the intentions of the parties, where the grant is not ex- 
plicit, yet in this case the reason of such construction fails, be- 
cause here is a plain grant of the rent out of the manor of Dale, 
and the distress is given in the manor of Sale, as a means for tlie 
recovery of it, for which he had no remedy by the grant itself; 

and 



ii36 ANNUITY AND RENT-CHARGE. 

und therefore the rule, quod expressum semper facit cessare tacituirif 
takes place here, that where the intentions of the parties are evi- 
dent, there that constructiwi shall never be admitted, which the 
law only allows in dubious contracts, ut res magis valeat quam 
pereat ; for if that manner of interpretation were admitted, the 
grant might be made double, and the grantor twice charged, 
against the design of the grant. 
5 Roll. Abr. If a rent be granted to A. and if the rent be behind, that a 

425. stranger shall distrain for it for the use of the grantee ; this is a 

good rent-charge in A., and a distress limited to a stranger for 
his benefit, is in effect making him the grantee's servant for that 
purpose ; and what a man may do by one servant, he may do 
by himself or any other. 
2 Roll. Abr. But if the distress had been limited to a stranger, without say- 

"*^^' ing for the benefit of the grantee, so that the limitation of the 

distress may seem to be independent on the grant, and without 
relation to it ; this distress does not make it a rent-charge, since 
by no words in the deed the distress shall be applied to the use 
or advantage of the grantee. 
Bro.tit. Grant, If A. grants and confirms to B. a rent of 5l. to be taken out 
Ah ^^ "f ^°^'' °^ ^"^ lands, which rent B. has of the grant of his father, though 
B. never had any such rent from his father, yet this grant of 
A.''s shall be good to create a rent-charge in B.^ for it is evidently 
; the intention of A. that B. shall have a rent of 51. out of his 

land; and a mistake or error in the description of the thing 
referred to, shall not render the true design of the contract inef- 
fectual and void. 
Co. Lit. 147. b. I^^ man seised of twenty acres of land, grants a land of 205. 
If two tenants percipiendwn de qualibet acrd terra suce, or out of every acre of 
in common, or land ; this is in nature of a several grant out of every acre, for 

ff^^'"''l*,t"t"'* the grant shall be taken most strongly aijainst the grantor, and 
be, and they .J' ini ^'^i' 

grant a rent of the grantee shall have 205. out or each acre. 

20«. per annum out of their land, the grantee shall have 40*. rent ; for as their estate is several, 
so shall their grant be too ; and therefore each shall be taken to grant a several rent of 20*. 
5 Co. 7. b. Plow. 140, b. 161. 171. 289. Co. Lit. 197. a. 267. b. 

Co. Lit. 147. b. If ^. bargains and sells land to B. by indenture, and before 

enrolment they both join in a grant of a rent-charge to C. this 

after the enrolment shall be construed the grant of B. and the 

•confirmation of A.^ because when the bargain and sale is enrolled, 

it has the effect of a deed enrolled, from the making thereof; 

and therefore it must be the grant of ^., who had the land at the 

time of the grant made ; but if the deed had never been enrolled, 

then it should have been the grant of A. and confirmation of i?., 

because the land never passed from A., the deed being ineffectual 

and void, without enrolment. 

Bro. tit .Grant, If an original grant be made of a rent-charge to commence 

ptow^ 1 56." ^* ^^"^^ ^^^ ^^^^^^ °* '^- ^- ^t is good ; for this is not like the case of 

Palm. 29, 30. lands, where the livery must carry the freehold immediately, and 

2 Vent. 204. where the abeyance, or want of distinguishing where the free- 

^"' " ^^^^ ^*°^^ ^^' "^^^ ^^ °^ prejudice to the rights of others ; for if the 

#w, or already freehold was to be granted infuturo, a man that had brought his 

. . precipe 



(B) What shall be a good Grant or Creation thereof 23/ 

prcecipe against the grantor, after he had proceeded in it a consi- created, cannot 
derable time, mijrbt have his writ abated by the freehold's vesting ^^ granted to 
in a stranger, by reason of a conveyance made by the grantor, after the death 
before the writ brought ; but the grant of a rent de novo is not of J^ S. because- 
attended with this inconvenience ; for no man can have a preee- ^^ ^^^^ '■^"ts 
dent right to a thing which is originally created by the grant prg^gj^^j ^jf 
itself; yet qucere, at what distance of time such charges may be ties, and there- 
allowed to commence, whether it must not be after the lives of fore such 
the persons in esse ; for if they be indefinite, they seem to have grants are not 
the same tendency to a perpetuity as any other contingent re- f,!^ehold "^bv '^ 
mainders, or executory interest ; and the bare affectation of a thus being split 
perpetuity is sufficient to condemn any conveyance. and severed, 

doth hide the 
person in whom the right is ; and therefore the party that has right, will not be able to discern 
against whom to bring his prcecipe for the recovery of it. Bro. tit. Grant, 86. 8 H. 7. 3. 
Plow. 156. [An annuity (after a disposition of it for other purposes), was devised to the 
testator^s eldest son : and on his decease, to the heirs male of his body ; and in case of his 
having no issue male, to remain to the testator's next eldest son, and the heirs male of his 
body ; the four eldest sons died without issue : it was adjudged, that the claim of the fifth was 
too remote. Turner v. Turner, 1 Bro. Ch. R. 516.] 

[Where a man devised all his lands for the payment of his lj^ Kennoule 
debts, and also an annuity out of a certain town, which the v. Earl of 
trustees sold; it was decreed in equity, that the annuity should Bedford, 
issue out of the other lands unsold j there being sufficient to pay \-Z'\ ^^•.^"^' 
the debts. &c'.(Arp. h 

iCh.Ca.295. S.a 

Where an annuity was devised out of a rectory, the glebe Thorndike v. 
being but of small value, and the tythes not liable to distress, it "f p ^^"'au 
was decreed that the whole rectory should be liable.] tit. Annuity 

&c. (A), pi. 2. 1 Ch. Ca. 79. S.'C. 

II A demise by a parson of his benefice, made subsequent to Shaw v. Prit- 
the 57 G. 3. c. 99. for securing an annuity, is void, it being in chard, lo Barn., 
substance a charging of a benefice within the meaning of the V ; ^"^^'J 
13 E. c. 20., which, so far as relates to the charging of benefices, & c. 344. 
is now in force, having been revised by the 57 G. 3. c. 99. 1| 

[If a man, possessed of a term, grant a rent generally, without 1 Roll. Abr. 
limiting any estate, the rent shall continue during the term. tit. Estate (H)^ 

A man, possessed of a term for years, determinable on lives, Gosley v. 
devised 20/. per annum to J. S. to be paid half-yearly, if the Gilford,, 
cestui que vies should so long live. J. S, died during the life of 7^1 ^^'if'^*, 
the cestui que vies, and it was adjudged that the rent wr^ not termination 
determined by his death, but should be paid to his executors in the case of 

during the continuance of the term.] a devise of an 

annuity to 
testator's executors and their heirs during the life of B., to the separate use of a married' 
woman, who died in the life of B. Rawlinson v. Montague, 2 Vern. 667. So> where a man 
devised an annuity to another during the life of his executor, to be paid him by the executor 
and the annuitant died in the life-time of the executor. Savery v. Dyer, Ambl. 159. 

11 An annuity can only be where the principal is irrecoverably Winter v. 
gone, and is to be satisfied by periodical payments ; therefore Monsley, 
a bond conditioned for payment of a sum to the executors of 2 Bam. & A. 

.... . I J _ 802 

the obligee, and interest in the mean time to him, is not an 
annuity bond.|| 

(C) Of 



^8 



ANNUITY AND RENT-CHARGE. 



(C) Of the Remedies for the Recovery of an Annuity. 

Lit. $ 219. JF a man grants by his deed an annual rent to J. S. in fee, for 
F. N. B. 152. ■*■ life or years, out of certain lands, with clause of distress, the 
6 Co. 58. b. grantee may, at his election, either distrain for this rent, or have 
^'*\'iTannuity * ^^'^'^ °^ annuity (<z), and thereby charge his person, 
lies for a rent-service. Vide tit. Rents, and Roll. Abr.226. 1 H. 4. 4.; nor if a man devises 
a rent out of his land, and dies; for after his death it is impossible to charge his person. 
6 Co. 58. b. Nor will a writ of annuity lie for a rent granted for equality of partition, or 
in lieu of dower ; for though these be given by the person, yet, being granted in satisfac- 
tion of a real estate, they retain the nature of the things for which they are given, and 
therefore not recoverable in a personal action. Poph. 87. Co. Lit. 144, 145. Roll. Abr. 227. 
Co. Lit. 144. a. 

If a man grants a rent out of his lands, and by a proviso in 
the deed, or by deed of defeasance, provides that neither the 
grant, nor any thing therein contained, shall be construed to 
extend to charge his person by writ of annuity; in this case the 
person of the grantor is not chargeable ; because the charge 
upon the person arising only from the manner of construing 
grants, which, for the consideration given, ought to be extended 
as far as the words will bear against the grantor, there can be 
no room for such construction, when by the express words of 
the grant, the person of the grantor is not charged ; for no im- 
plication shall be admitted to overthrow an express clause in 
the deed. 



Lit. § 220. 
Poph. 87. 
6 Co. 58. 
But if the pro- 
viso had been 
that the grant, 
nor any thing 
therein con- 
tained, should 
charge the^ 
land, that 
proviso had 
been void, as 
repugnant to 
the grant. 
Co. Lit. 146. a 
Co. Lit. 14 6 

6 Co. 41. b. 

7 Co. 53. b. 
Dyer, 227. 
[Where a 
man cove- 



If a man grants a rent-charge out of the manor of Dale, in 
which the grantor has no interest, with a proviso that the grant 
shall not charge his person, this proviso is void ; because the 
grantor, having nothing in the manor of Dale, could not, by any 
act of his, charge it ; and consequently, the grantee having no 
nanted to settle remedy for his annuity, but against the person of the grantor, 
lands of such ^, -^ . ^ ^ f . ° . ., ^ i • *u u i 

a value and ^"^ proviso to exempt his person is void, as rendering the whole 

grant ineffectual : and if in this case the grantor had been seised 
of the manor, and had granted a rent charge out of it, for the 
life of the grantee, with a proviso that the grant should not 
charge his person, though the grantee himself could have no 
remedy but by distress; because, that remedy being open to him, 
the proviso is good to exonerate the person ; yet, upon the death 
of the grantee, his executor may have an action of debt against 
the grantor for the arrears, because the executor has no other 
annuity in the remedy for the recovery of them ; for he cannot distrain after the 
hands of the grant is determined ; and therefore the proviso to exempt the 
person is void against the executor, as rendering the grant useless 
and ineffectual. 



had none at 
the time, but 
purchased 
land after- 
wards, and 
voluntarily de 
vised it, such 
land was 
holden to be 
liable to the 



devisee. 
Tooke V. 
Hastings. 
2 Vern. 97.] 

6 Co. 58. b. 
But if the 
grantor had 
given a penny, 
or any other 
thin<! in the 



And hence it is, that if a rent be gi'anted out of lands, with a 

proviso that the person of the grantor shall not be charged, that 

this proviso is void; because the grantee, having no distress 

given by the deed for the recovery of the rent, would be without 

any manner of remedy, if the proviso took place. 

name of seisin, the proviso had been good, because he might recover the rent in an assize. 
6 Co. 58. b. 

If 



(C) Of the Remedies for the Recovery of an Annuity, 



S39 



Co. Lit. 147. b. 
Cro, Jac. 390. 
Roll.Rep. 330. 
Cro. Eliz. 607. 
622. 



(a) 7 Co. 23. 
25. Butt's 
case. 

7 Co. 23. 
Cro. Eliz. 185. 



If a man by his deed grants, if J. S. be not yearly paid the Co. Lit. 146. 

sum of ten shillings, that then he may distrain for it in his If ■^- and B. 

manor of Dale, this is a good rent-charge out of the manor; but jo'nt-tenants, 

no writ of annuity lies for it, because there is no grant of the chaUe^o'ut^of 

rent made by the grantor ; yet, because he hath given the their land, 

grantee a power to distrain, if such a yearly sum be not paid with a proviso 

him, the manor is thereby charged with the distress, and con- ^ '^ , ,, 
, .11 r-*^ 1 • 1 1 T , • • grantee shall 

sequently with the rent tor which the distress is given. not charge the 

Eerson of A., this discharges the person of A, but leaves B. liable to the writ of annuity. Co. 
it. 147. b. 

If a man, seised of land in fee, and possessed of other land for 
years, grants a rent-charge for life out of both, with a power to 
distrain in both, if the rent be arrear, the leasehold, as well as 
the land of inheritance, are subject to the distress ; because a 
man may oblige his chattels to the discharge of the rent; but 
the rent being a freehold, shall issue only out of the inheritance; 
because the leasehold, being only a temporary and perishing in- 
terest, is not a fund commensurate to the charge ; and therefore, 
the rent shall issue out of the inheritance, which for its duration 
is a more complete estate to support the charge, and render the 
grant effectual. And hence it was adjudged (a), that though the 
grantee might distrain the leasehold lands, yet he must avow for 
a rent issuing out of the inheritance. 

But if a man possessed of a term for years, grants a rent out 
of it to another for life, though the estate be of shorter duration 
than the charge ; yet because it is the only fund provided by the 
grant, for the payment of the rent, it shall answer the grantee so 
long as it has continuance, if the life for which the rent was 
granted, lasts so long. 

There is another remedy for the recovery of an annuity or 
rent-charge, and that is when a power is given the grantee to 
enter {b) and hold the lands till satisfied the arrears by the per- 
ception of profits, the grantee, when the rent is arrear, may in 
such case enter and hold the lands till satisfied by the perception 
of the profits ; though in this case it was objected, that there 
was no estate conveyed, out of which a use might arise to the 
grantee, upon the nonpayment of the rent ; and that this grant 
could pass no estate to the grantee, as a conveyance at common 
law, because the grantee could have no inheritance or freehold in 
the land, when the rent was in arrear for want of livery, rv. r an 
estate for years, for want of a certain commencement and deter- 
mination ; yet it was adjudged, that by the grant he had an in- 
terest vested in him, when the rent was arrear; and though it be 
an uncertain interest, which, for the uncertainty of its commence- 
ment and determination, might be void by the strict rules of 
law, if it were granted independent of any estate certain, yet it 
is good in this case, because it is created to attend a determinate 
estate; and the nonpayment of the rent fixes the certainty of its 
beginning, and the satisfaction of the arrears, by the perception 
ot the profits, the end and determination of such interest; and 
therefore the grantee may reduce such interest, as it rises, into 

his 



Perception of 
Profits. Sid. 
223. 2fi2. 344.* 
Lev. 170. 
Keb.784. 
Raym. 135. 
158, Sand. 
112^ 115. 
Jemet and 
Caw ley. 
[(b) In such 
case, if he 
enters, he h 
not compell- 
able to quit 
till he has 
been paid in- 
terest for the 
arrears down 
to the day ; 
aliter, if he 
neglects to 
enter. Robin- 
son V. Cam- 
ming, 2 Atk. 
2411. Where 
a grantee of 



240 ANNUITY AND RENT-CHARGE. 

an annuity his possession by ejectment, which is the proper remedy to re- 
has recovered cover the possession. 

against a tenant from year to year, of the grantor, he may afterwards, in an action for use and 
oecupation, recover all the rent in the hands of the tenant at the time he gave him notice, and 
down to the day of the demise, but not afterwards. 1 Term R. 578. Birch v. Wright. 

Cro.Jac.5io, If a man grants a rent-charge to J. S., his heirs and assigns, 

511,512. and if it shall happen that the rent be behind and unpaid, that 

2 Roll. R. 12. ^j^gjj j.j^g ggjj J ^^ fjjg heirs and assigns, shall enter into the land, 

I B^lstr ^^^ have and enjoy the rents thereof, until the arrears be fully 

250. Haver- ' satisfied ; and the grantor covenants to levy a fine to the uses of 

gile and Hare, the said deed ; if after the fine levied the rent be arrear, the 

And by the trrantee may enter into the land, or make a lease for years to try 

better opinion, j^.^ ^.^j^ .^ ejectment; because by the fine there is an estate vested 

if the rent be in the conusees, to raise an use in the grantee, of the rent- 

arrear before charge, when the rent is behind; and whenever the rent becomes 

the fine levied, ai-^ea,.^ i\^q possession is executed to that use, and consequently 

i^Vd^after- ^^^ grantee hath a right to take and keep that possession, till the 

wards shall be use for which it was executed be satisfied; and that was till the 

sufficient to arrears of rent be paid by the perception of the profits ; and 

raise an use m tl^erefore though the greatest interest in the land be uncertain, 

ente^'^^nto^the (because it is uncertain when the rent will be paid out of the 

land for the profits,) yet while his interest remains, if his possession be dis- 

recovery of turbed or devested, he may restore it by ejectment, which is the 

these arrears ; proper remedy to recover the possession; and if the grantee 

because the ^ .^ V . .x • ^ ri • ^ i 

fine is cuided assigns over the rent, the assignee may likewise enter, and main- 

by the deed of tain a title in ejectment ; for though the use arises out of the 
grant, and both estate of the conusee only, as the rent is in arrear, and, till the 
amount but to j.gjjj. |^g behind and unpaid, there is nothingf more than a bare 
one assurance. . ,. u- u • •*. i. • ^ • i i ... i 

Cro Jac 512. possession ox a use, which in its nature is not assignable ; yet by 

the conveyance of the rent it shall pass, because it is nothing 
more than a remedy or security for the rent; and therefore shall 
attend that into whose hands soever it comes. 
C T > 1 fi2 "^^^ action of debt does not lie for the arrearages of an annuity, 

4 Co. 49. a.* ^^ ^^^^ grantee be seised of it in fee, tail, or for life. 
J|\Vebb V. Jiggs, 4 Maule & S. 113. Kelly v. Clubbe, 5 Bro. & B. 1.50.1] But where 
an annuity was granted by deed for two years, and the grantee brought an action of debt 
for the arrears ; on demurrer it was held, that debt would lie upon the contract, it being 
granted by deed, and for years. Cro. Eliz. 268. For the remedies which heirs and exe- 
cutors have by distress or action of debt, vide head ot Rents, and the statutes 32 H. 8. 
C. 37.* sAnn. c. 14. 4G. 2. c.28. llG.2. c. 19. 

* See a good comment on this statute of H. 8. Co. Lit. 162. a. b. 

Roll. Abr. 226. As regularly the remedies for recovery of an annuity or rent- 
Hob 5Y* charge are either by writ of annuity or distress, it is to be seen 

Dyer, 344. which is the most eligible method, and what shall determine the 
Co. Lit. 144. grantee's election. If A. grants a rent-charge to B. and his 
heirs, if the rent be arrear, not only the grantee, but his heirs in 
infinitum, may distrain for it ; for the remedy, being commen- 
surate to the right, must be of equal duration with the right ; 
but if in this case the rent be arrear, and the grantee brings a 
writ of annuity, in order to charge the person of the grantor, it 
is no longer to be considered as a rent issuing out of the land, 
because the writ of annuity has entirely turned the charge upon 

the 



k 



(C) Of the Rernedies for tJie Recovery of an Annuity. 241 

the person of the grantor, and under that denomination it must 
determine with the life of the grantor, because his heirs are not 
chargeable. 

But if A. had granted for him and his heirs (a) to B. and his i Roll. Abr. 
heirs, such a rent out of his lands, in this case the heirs, being 226. Co. Lit. 
comprehended in the contract, are bound to make good the grant il'*'./ ?P. 
so lar as they have assets by descent rrom the grantor. annuit\' 

granted by a body politic will charge the successors, though not named in the grant. Plowd. 
455.] 

If a rent be granted in tail, the grantee cannot alien it while it Poph. 87. Co. 
continues a rent; because as such it may be entailed within the Lit. i9.a. 
statute de donis ; but if the grantee brings his writ of annuity, it iP^-'^' ^^'^' 
is no longer within the statute, because then it is become a charge 
merely personal, without any relation to the land out of which it 
was first granted, and therefore is become a fee-simple conditional, 
as such a gift of lands had been before the statute; and therefore 
the annuity not being within the statute, may be aliened. 

But in some respects the writ of annuity is the better remedy : Annuity where 
as if a termor for years grants for him and his heirs a rent- better.'Poph. 
charge out of his land to another and his heirs, in this case, if 87. 
the grantee distrains, and thereby has thrown the charge en- 
tirely off the person upon the land, upon the expiration of the 
term, the rent is gone; because the grantor could not charge 
the land longer than his own interest in it continued ; but if the 
grantee had brought his writ of annuity, the charge upon the 
person had been perpetual, so long as the heirs of the grantor 
had any assets ; because the grant was for him and his heirs. 

The next thing to be enquired into is, what acts of the grantee Lit. § 219. 
are sufficient to determine his choice; and this determination must Roll. Abr. 22^. 
be by some solemn act in a court of record, that it may appear ^o* Lit- 145. 
to be the act of the grantee himself, and not of a stranger, with- 
out his permission or authority; and therefore if the grantee 
distrains for the rent, that is no determination of his election j 
neither is the suing forth a writ of annuity any determination, 
because these may be done by a stranger, without the grantee's 
knowledge or consent ; or rather, because the design of the law - 
being to help men to the recovery of their rights, in the best and 
most beneficial method, the grantee shall not be foreclosed of 
either of his remedies, by any rash or unadvised act of his; but 
if the grantee counts in the writ of annuity, or avows the taking 
of the distress, the count and avowry is a repeated determination, 
or plain confirmation of his first choice and election ; and this, 
being entered on record, is taken to be the deliberate act of his 
mind, and therefore he shall not be allowed to recede from what 
he has done in so solemn a manner. 

But if a man grants a rent-charge in fee, without saying, for Dyer, .'544. b. 
him and his heirs, and the grantor dies, and the grantee brings Hob. 58. 
a writ of annuity against the heir, though he counts thereon, 
and proceeds to judgment, yet that does not foreclose him of his 
distress on the land out of which the rent issues ; because, by . 
the death of the grantor, the grant, as an annuity, was deter- 
mined ; and consequently the grantee had no election, having 
Vol. I. R but 



Q^2 



Poph. 86. 
Co. Lit. 148. 
Mo.301. 
2 Co. S6. 



C'o. Lit. 1 48. 
(a) But Qn. 
Whether the 
case may not 
be so circuni- 
Btanced as to 
entitle him to 
relief in 
equity ? Vide 
2 Vern. 143, 
144. [In the 
case referred 
to from Vern. 



ANNUITY AND RENT-CHARGE. 



hut one remedy for the recovery of it, which was by distress ; but 
the distress in this case still remained, because the grantee lost 
his election by the act of God, for which no man ought to suffer. 

So it is if tenant pur aider vie grants a rent-charge for ten 
years, and the cestui que vie dies, in this case the charge is deter- 
mined as a rent, because the estate for life, out of which it issued, 
is ended ; but the grantor is still liable to a writ of annuity for 
the growing annuity, because the grantee had not by any act of 
his determined his choice; and therefore, the election being taken 
away by the act of God, and not by any act of his own, he may 
pursue the other remedy by writ of annuity. 

But if the grantee of a rent-charge, before he has made his 
election, purchases part of the land, in this case he is without any 
remedy {a), either against the land or against the person of the 
grantor ; the land is not liable, because the rent is extinct by the 
purchase; and it being in its original creation a rent-charge, 
though the law gave a double remedy for it, yet when the 
grantee has by his own act discharged the land, and extinguished 
the rent, he can have no remedy for the thing which he has 
wilfully destroyed, and therefore he can have no writ of annuity 
against the person. 



the grantee was only a mortgagee of the estate charged with the annuity.] 



17 G. 3. 

$1. 



C.26. 



The memo- 
rial in !>uch 
case must 
disclose the 
consideration 
truly. Rex v. 
Wright, Hunt, 
43. \b) A scire 
facias to re- 
vive a judg- 
ment entered 
up before the 
act passed, is 



[(D) Of the Provisions made by the Legislature re- 
specting Life Annuities. 

TJY statute 17 G. 3. c. 26. § 1. it is enacted, "that a memorial 
" of every deed, bond, instrument, or other assurance, 
** whereby any annuity or rent-charge shall, from and after the 
" passing of this act, be granted for one or more life or lives, or 
" for any term of years, or greater estate determinable on one 
** or more life or lives, shall, within twenty days of the execution 
" of such deed, S^c. be enrolled in the High Court of Chancery ; 
*' and that every such memorial shall contain the day of the 
** month and the year when the deed, S^c. bears date, and the 
'* name of all the parties, and for whom any of them are trustees, 
** and of all the witnesses ; and shall set forth the annual sum or 
*' sums to be paid, and the name of the person or persons for 
" whose life or lives the annuity is granted, and the consider- 
" ation or considerations of granting the same ; otherwise every 
" sjich deed, &c. s/iall be null and void to all intents and purposes.** 
§ 2. " That before any judgment shall be entered of record 
*' upon any warrant of attorney for recovering or securing the 
" payment of any annuity or rent-charge that hath already been 
" granted for one or more life or lives, or for any term of years 
or greater estate determinable upon one or more life or lives, 
and before any execution shall be sued out, or action (b) 
brought on any such judgment already entered, or on any 
deed, bond, Sfc. already executed for the puiposes aforesaid, 
a like memorial of the deed, <§r. shall be enrolled in the high 
Court of Chancery; and in case the party shall neglect td 

" enro 



(D) Statutes respecting personal Annuities, (Memorial.) 243 

" enrol the same, any such judgment, execution, or proceeding an action with- 
*' in the action respectively shall be null and void." in this clause. 

Fenner v. Evans, 1 Term R. 267. 

l|By the 53 Geo. 3. c. 141. § 1. the statute 17 Geo. 3. c. 26. 53G.3. c.i4i. 
is repealed, except as to annuities granted before the passing of ^ ^' 
that act, but the principal provisions of the statute are re-enacted 
with some alterations and additional regulations. 

By § 2. (which nearly corresponds in substance with the above § 2. 

§ 1. of the 1 7 Geo. 3. c. 26.) it is enacted that within thirty days [a) {a) Twenty 
after the execution of every bond, instrument, or other assurance, ^^^^ ^" '-^^ 
whereby an annuity or rent charge is granted for one or more life 
or lives, or for any term of years or greater estate, determinable 
on one or more life or lives, a memorial of the date of every such 
deed, bond, instrument or assurance, of the names of the parties, 
and of all the witnesses thereto, and of the person or persons for 
whose life or lives such annuity or rent-charge shall be granted, 
- and of the person or persons by whom the same is to be bene- 
ficially received, the pecuniary consideration for granting the 
same, and the annual sum or sums to be paid, shall be enrolled 
in the High Court of Chancery, in the form or to the effect follow- 
ing, with such alterations as the circumstances of any particular 
case may require, otherwise every such deed, S^e. shall be null 
and void. (The act then gives a form of memorial.) 

The numerous cases decided on these corresponding sections 
of the two acts may be classed under the following heads : 

1. In what Cases a Memorial is necessary. 

2. Of the Form and Contents of it. 

3. Of Vacating and setting aside Annuities. 

1. In 'what Cases a Memorial is necessary.^ 

[The warrant of attorney is an assurance within the act, and „ , . 
i. u 11 1 T Hopkins v. 

must be enrolled.] Waller 

4Term R. 463. Davidson v.FoIey, 2 H. Black. 12. 3 Bro. C. R. 598. Jacques v. Witty, I Term 
R. 557. Downes v. Parkhurst, cited in 2 H. Black. 13. 

11 And it is not sufficient to state it merely by way of recital in -y-jj^ Braam v. 
stating the annuity deed.|| Isaacs, i Bos. 

& P. 451. ; sed wrfe Jackson v. Milsentown, f Taunt. 189. 

[But a judgment entered is not such an assurance, unless per- Sherson v. 
haps where it is the only security. ?TermR.824. 

An assignment of part of an annuity is within the act, for it Dnkc of Be!- . 
must always appear by the registry, who has the present subsist- *«" v- Wil- 
ing right/ t--.*,?-- 

2 Ves. jun. 158. S. C. ; sed vide Dixon v. Birch, 2 H. Black. 5C7. 

So where an annuity was granted before the act passed, and Grant v. 
assigned subsequent to it, and after the assignment made, the ^°'^3'> C* P* 
original securities, but not the assignment, were enrolled; it was "** ^ 
holden, that no proceedings could be had by reason of the non- 
enrolment of the assignmeut. 

R 2 A con- 



S44 



ANNUITY AND RENT-CHARGE. 



Jackson v. 
Lever, 3 Dro. 
C. Ca. 605. 

4 Term R. 660. 
662. 5Te^mR. 
283.; and see 
5Bing.215. 



O'Calliighan 
V. Ingilby, 
9 East R. 135. 



Henderson v. 
Countess of 
Glencairn, 
2 Taunt. 235. 

Keats V. Hick, 
5 Moo. R. 629. 
4 Barn. & C. 
69.S.C. 



Blake v. Atter- 
soll, 2 Barn. 
& C. 875. 
4 Dow. & Ry. 
549. 



Tetley v. 
Tetley, 4 Bing. 



214. 



Brown v. 
Dowthwaite, 
•1 Madd. 446. 

James v. 
James, 2 Bro. 
& B. 702. 
5 Moo. 479. 

(a) An equita- 
ble estate is 
within this 
exception, 
thougti it 
mortgage 
its whole 
value. Shrap- 
nel V. Vernon, 
SBro.Ch.R. 



A contract to grant and secure an annuity, though in part 
executed, is not within the statute. 

The act being made to take effect " frpm and after the passmg 
" of it," its operation commenced from the first day of the session, 
and affected annuities granted subsequent to that time, though 
before it actually passed. The twenty days are exclusive of the 
day on which the deeds are executed.] 

II A trust deed granting estates to trustees upon trust' to raise 
money by annuities, which annuities are accordingly granted, does 
not require enrolment, it not being an instrument " whereby any 
annuity is grantedJ' 

So also where an annuity bond was assigned by the obligee, 
the annuitant, to secure an annuity granted by the obligee of 
less amount, it was held that the second annuitant was not 
obliged to enrol the bond. 

Where a mother, at the instance of her sons, sold her business 
and advanced them a sum of money out of the proceeds, and 
subsequent to such advance it was agreed that the sons should 
secure to her an annuity, and a bond was accordingly given for 
securing it, it was held, that as the bond was subsequent to the 
advance of money, the annuity was voluntary, and not within 
the act. 

The act applies only to annuities sold for pecuniary consider- 
ation; and, therefore, where by marriage settlement 10,000/. 
was to be paid by the father of the wife to trustees upon trust to 
pay the interest to the husband for life, and the father died with- . 
out having paid the principal to trustees, and his affairs being 
embarrassed, and it being uncertain whether there would be -^ 
sufficient to pay his debts, the husband agreed to accept in lieu 
of the 10,000/., 5000/. and an annuity for his life of 125/., it was 
held, that such annuity granted by the executors of the father, 
did not require enrolment. 

So where an annuity of 1 0/. was granted by a son to his parents, 
in consideration of their giving up to him a farm which they occu- 
pied, and the stock on it worth 300/. ; it was held that the an- 
nuity need not be enrolled under 53 Geo. 3. c. Ul. 

So an annuity granted in consideration of an assignment of a 
reversionary interest in stock does not require enrolment. i 

And where an annuity is granted in consideration of the fair' 
and bonajide sale of landed property, the consideration is not a 
pecuniary consideration or monei/s worth within the meaning of 
the statute, and enrolment is not necessary. || 

[The last section of 1 7 G. 3. c. 26. excepts from the act any 
annuity or rent-charge given by will or marriage-settlement; any 
annuity secured upon lands of equal or greater annual value, 
whereof the grantor was seised (a) in fee-simple or fee-tail in 
possession at the time of the grant, or secured by the actual 
transfer of stock in any of the public funds, the dividends whereof 
are of equal or greater annual value than the annuity ; any 
voluntary annuity {h) granted without regard to pecuniary con- 
sideration ; 



(D) Statutes respecting personal Annuities. (Enrolment.) 245 

sideration ; any annuity or rent-charge granted by any body 268. (i) An 
corporate, or under any authority or trust created by act of par- annuity^ con- 
liament; and any annuity where the sum to be paid does not the grantee's 
exceed ten pounds, unless there be more than one such annuity giving up his 
from the same grantor or grantors, to or in trust for the same business to the 
person or persons.! grantor, is 

^ i^ -^ withni this 

clause; for any annuity granted for any other than a /^eflMMtarj^ consideration is, for the 
purposes of the act, to be taken to be a voluntary annuity. Crespigny v. Wittenoom, 
4 Term R. 790.; ||and see Doe dem. Johnston v. Phillips, 1 Taunt. 556. So also an annuity 
granted in consideration of the grantee's resigning his situation as master of an academy. 
Hutton V. Lewis, 5 Term R. 639. ; and see James v. jfames, 2 Bro. & B. 702. Blake v. Attersoll, 
2 Barn. & C. 875. ; and ante, p. 244. The two last cases were decided on the 53 G. .5. 
c. 141., in which the words " money's worth" are added to the words "pecuniary con- 
sideration" in the former statute. An annuity secured on lands of equal annual value 
need not be enrolled, although also secured upon leasehold property. Ex parte Mitchell, 
2 East R. 137.JI 

II The corresponding clause in 53 G.3. cl^l., enacts that this 53G.3. c.i4i. 
act shall not extend to Scotland or Ireland, nor to any annuity or ^ ^°* 
rent-charge given by will or by marriage settlement, or for the 
advancement of a child; nor to any annuity or rent-charge secured 
upon freehold, or copyhold, or customary lands in Great Britain 
or Ireland, or in any of his majesty's possessions beyond the seas, 
of equal or greater annual value than the said annuity, over and 
above any other annuity, and the interest of any principal sum 
charged or secured thereon, of which the grantee had notice of 
the time of the grant, whereof the grantor is seised in fee-simple 
or fee-tail in possession, or the fee-simple whereof in possession 
the grantor is enabled to charge at the time of the grant, or 
secured by the actual transfer of stock in any of the public 
funds, the dividends whereof are of equal or greater annual value 
than the said annuity ; nor to any voluntary annuity or rent- 
charge granted without consideration or money's worth ; nor to 
any annuity or rent-charge granted by any body corporate, or 
under any authority or trust created by act of parliament. 

By section 5. it is enacted, that in case any person or persons If^id. §5. 
by whom any annuity or rent-charge, of which such particulars 
as aforesaid are hereby required to be enrolled, shall, for the - 
time being, be payable, shall be desirous of obtaining a copy of 
every or any deed, bond, or instrument, or other assurance, 
whereby such annuity or rent-charge was granted, and of such 
his, her, or their desire, shall give twenty-one days' notice in 
writing to the person or persons, for the time being, entitled to 
such annuity or rent-charge, such person or persons shall, on or 
before the expiration of such twenty-one days, unless prevented 
by fire, or other inevitable accident ; and in that case, if the assur- 
ance shall not be destroyed by such accident, then, as soon after 
as such impediment shall be removed, send or deliver to the 
person or persons requiring the same, a copy of every deed, 
bond, instrument, or other assurance, whereby such annuity 6t 
rent-charge was granted, or of such of the assurances as in such 
notice shall be required; and such last-mentioned person or 
persons shall, at the time of receiving the same, pay to the 
person or pei'sons furnishing the same, a sum after the rate of 

R 3 sixpence 



246 ANNUITY AND RENT-CHARGE. 

sixpence for every one hundred words contained in every such 
copy, and also the reasonable costs of sending or delivering the 
same ; and the person or persons holding the original instru- 
ments by which such annuity or rent-charge shall be secured, 
shall suffer the person or persons to whom such copies shall be 
delivered or sent to examine the same with the originals ; and in 
case such copies shall not be sent or delivered, or the person or 
persons holding the original instruments, shall refuse to suffer 
such copies to be examined therewith, according to the direction 
in this act, it shall be lawful for the person or persons by whom 
the annuity or rent-charge is payable, to take out a summons 
from any of his majesty's justices of his courts of King's Bench 
and Common Pleas, requiring the person or persons neglecting 
to send or deliver such copies, or refusing to suffer the same to 
be examined with the original instruments as aforesaid, to appear 
before such judge, and shew cause in the premises ; and it shall 
and may be lawful for the judge before whom such person or 
persons shall be summoned to make such order for the produc- 
tion of the instruments by which such annuity or rent-charge 
shall be secured, and for suffering the complainant to take 
copies thereof, and examine the same or the copies delivered 
with the original instruments, and otherwise in the premises as 
to such judge shall seem meet. 

2. Of the Form and Contents of the Memorial.\\ 

Downes v. [The omission or incorrect statement of the date of warrant of 

Parkhurst, attorney is fatal. 

2 H. Black. 13. Duke of Bolton v. Williams, 4 Bro. Ch. 2 10. 

DukeofBoI- -^ defect in the memorial as to the date of any one of the 

ton V. Wil- securities vitiates the whole transaction. (a) 

liams 4 Bro. Ch. 210. 2 Ves. jun. 158. S. C; but see Ex parte Chester, 4 Term R. 694. 

Saunders v. Hardinge, 5 Term R. 9. ||(a) But now by 3 G. 4. c. 92. it is provided, that every 

bond, &c. granting any annuity which shall be duly enrolled shall be valid, notwithstanding a 

memorial of any other deed securing the same annuity shall not have been enrolled.|| 

Exch'^ ^ T*^^'^* ^^ ^^ "°* j.necessary to describe the trustees eo nomine, it is 

32 G. 3. An- ^"°"g^* if it appear on the face of the memorial that they are 

derson v. Col- SUch. 

lard, Sitt. Westminster, cor. Ld. Keni/on after Easter T. 1791. 

Duke of Bol- '^^^ names of all persons, agents as well as principals, by whom 

ton V. Wil- and to whom the consideration is paid must be set forth, 

hams, ubi suprh. Toldervy v. Allen, 5 Term R. 

Hood V. Bur- Every trust relating to the annuity must be registered, 
ton, 4 Bro. Chan. Ca. 121. 

Allan'^'sT^ But it seems not necessary to take notice of those which are 

R. 480. ^'™ ^^^ created in consequence of the annuity.] 

IIAhhoughthe words of the act, 17 Geo. 3. c 26. only require 
the names of the parties to be specified, and for whom any of 
them are trustees, yet the decisions have required the trusts of the 
deed to be expressed, though this doctrine has been repeatedly 
disapproved. 

Thus 



i 



(D) Statutes respecting personal Annuities. (Enrolment.) ^7 

Thus a statement of the trust as general for the grantee, when Taylor v. John- 
in fact there was a prior trust for the grantor until default in ^°"' 
payment of the annuity, was held insufficient. 

So also, where the trustee was described in the memorial as Askew v. 
" nominated on the part of the grantee," and it appeared from Mackretli, 
the deed that he was a trustee both for the grantor and grantee, i ^ew 1 . 21 . 
the memorial was held insufficient. 

So also, where the deed contained a stipulation that the trustee Desenfans v. 
should permit the grantor to take the rents and profits until de- O'Brien, 3 East 
fault, and in case the annuity should be in arrear sixty days, he ' " * 
might enter and raise sufficient to satisfy it, and suffer the grantor 
to take the overplus, a memorial stating the deed to contain the 
usual powers of entry and distress, and perception of the rents, Sfc. 
for securing the annuity, was held insufficient. 

So also, it is insufficient to refer generally to the trusts of the ^^ ^g^g^ v 
deed as the " trusts thereby declared." Lockwood, 

1 Maule & S. 527.; and see Bradford v. Burland, 14 East, 445.; but see Defaria v. Slurt, 

2 Taunt- 225. Blamire v. Barfoot, 6 Taunt. 504. Browne v. Rose, 6 Taunt. 124. 

It is not necessary that the estates charged should be specifi- O'Callaghan v. 
cally set forth in the memorial where the annuity is charged on Inglel)y,9East, 
all the grantor's estate in a county, and so stated ; nor is it 
necessary to state specifically the powers in a deed, except so 
far as they create a trust, and so are brought within the words 
of the statute as to trustees. 

If a bond be joint and several, the memorial is insufficient if wiHey v. Caw- 
it state it to be several. thorne, i East. 

598; and see Coare v. Giblett, 5 East, 461. 

If an annuity bond bind the grantor's heirs, the memorial is Horwood v. 
not insufficient for describing it generally, without mentioning ^*q pj^s^'^i'^^ 
the obligation on the heirs. 4 Taunt. 546*. 

S.C.J and see .Jackson v. Milsentown' 6 Taunt. 189. 

If the annuity-deed under the 17 G. 3. c. 26. contain a proviso Ex parte An- 
for a repurchase by the grantor, the terms of it must be stated ; ^'^ i l^os. & 
and it is not sufficient to refer to the proviso, stating the annuity ^J^ Rooth 
to be redeemable on such terms as therein expressed. Druce,4Taunt. 

252. Tringham v. Bethune, 7 Taunt. 429. Doe dem. Mason v. Phillips, 5 Maule & S. 569. 

But under the 53 G. 3. c. 141. a proviso for redemption need Yems v. 
not be mentioned in the memorial. S"! onr 

Cv A. 206. 

Where the grantor was required to make her will, as a ExparieM^c- 
further security for the annuity, and the grantee retained the keiiicie, 
will, it was held that the memorial was insufficient for not no- 
ticing the will. 

It is not decided whether a fine is an assurance requiring 14 East, 453. 
enrolment by 17 G. 3. c. 26. 

The assurances required by the annuity acts to be enrolled Sandilandn v. 

are those entered into bv the irrantor, or persons at his instance, Marsh, 2 Barn. 
,. . ,1 • 1 1 r i • I & A. 67;).; and 

ior securnig the annuity ; and therefore a guarantee given by a ^^^ ^ Youn. & 

third party, unconnected with the grantor, and for a commission j. 156. Sed 
payable to such third party, is not within the act. w/*^ Kosher 

V. Hurdis, 5 Term R. 678. 
R 4 A lease 



2^8 ANNUITY AND RENT-CHARGE. 

JSx parte A lease deposited two years after the annuity is granted, as a 

132.*^'' ' collateral security, does hot require enrolment. |I 

Hood V. Bur- [Where several annuities are payable out of a gross sum 

ton, 4 Bro. assigned for that purpose, every annuity must be stated in the 

Chan. Ca. 121. " . , . . * ^ «> ' "^ i -i -^ •* r 

meniorjal ; it is not sufficient to describe it as one annuity or 

such gross sum. 
^"^^ %ri°^' '^'^'^ memorial must contain an account of all the proceedings 
Hams 4 Bro i*elative to the consideration, to whom and on whose behalf paid ; 
Ch. R, 297. a»d the actual mode and manner of paying it.] 
2 Ves.jnn.l38. 

Dalmer v. H ^^ ^^^ consideration is paid &/ an agent, his name, as well 

Barnard, as that of the principal, must be stated in the deed. 

7 Term R. 248. Askew v. Mackreth, 1 New R. 214. 

Crawford v gyj- jf p^jj ^^ ^jj agent of the grantor, his name need not 

Fhillips, 2 New 1 , . , °i /« 1 ^ I • 1 • 

R. 141. "^ stated, since the words ot the statute do not require tnis. 

Coare y. Gib- The time of payment is not required to be specifically stated 
lett, 4 East, 85. by the act, and is not any further material than as entering into 

the question of the value of the consideration. 
Crawford v. And where the consideration was alleged in the deed to be 

R 'i4^^'.^ j^ P^'d by the grantee on a particular day, on which day it was in 
see Cook v. ^^^^ P^'^ ^^ ^he common agent of both parties, and by him paid 
Jones, 15 East, a few days after to the grantor, this was held a sufficient allega- 
2^®' tion of payment within the statute. 1| 

Wright V. [If paid part in notes, a description of it as money is bad, and 

R554 ^^""^ ^^^ ^^^^^ ^"^^ other particulars of the notes must be stated. ] 
iJBerry V. Bentley, 6 Terra R. 690.; see Drake v. Rogers, 4 Moo. R. 402.|| , 

Ex parte ||But if the value of the notes has been received in money be- ; 

sEast 137 ^°^^ ^^^^ execution of the deeds, it may be stated as money. || «! 

(«) Kirk man v. [If part of the Consideration be money previously lent (a), or .; 
Bhrk TOO P^^*" ^^ ^^ retained in satisfaction of a debt (i), or to satisfy "i 
(b) Shove V. the accruing payments of the annuity (c), or part of it be the .: 
Webb, 1 Terra giving up a former annuity (c?), or if the whole be a judgment . , 
vv^" {''^^^^ recovered against the grantor (e), a memorial stating the payment ''J 
E. 22"g^3 generally is bad, for it does not disclose the transaction truly. 

JB. R. Hunt on Annuities, (rf) Washburn v. Birch, 5 Term R. 472. {e) Jaques v. Withy 
1 Term R. 557. 

Simons v. But where the consideration has been paid from time to time, 

5 Term r! 139. ^"^ ^^^^ hten renewed for the purpose of keeping the contract 
Sowerbyv. open, the gross amount may be stated as the consideration. The 
Harris, 4 Term consideration may be set forth merely by way of recital. 
R. 494. 

Hodges V. Mo- And it is sufficient to mention it only once, though there are 
ney, erra . several deeds for securing the annuity, in each of which it is ex- 
pressed.] 
Ranger v. Earl HSo also, if the name of the party for whose life the annuity is 
5 Minr&S''2 • S'"''^"'*^^ ^^ expressed in one of the several securities, it is suffi- 
and 'see BaVber ^'^"^ without expressing it in the others. || 
v. Gaftison, 4 Bam. & A. 282. 

[But 



(D) Statutes respecting personal Annuities, (Enrolment.) 249 

[But where one of the instruments which constitute the assur- Saunders v. 
ance does not set forth the consideration, (and it is not necessary Hanlinge, 
to set it forth in every one,) tlie memorial must connect the in- ^ ™ ^* 
strument omitting it with the others, by so plain an inference 
that it may clearly appear to relate to the same transaction, 
else such instruments will be void ; and it must be inferred from 
the memorial itself that all the deeds are connected.] 

Where a memorial described an instrument as an assignment, Butler v. Ca- 
, and it appeared in fact to be an under-lease, it was held suffi- pel, 2 Bam. & 
ciently described in popular language. C. 251. 

An annuity deed is properly described as a " grant of annuity, ^^ Browne v. Lee 
though it contain an assignment of stock as a security ; so also 6 Bam. & C. 

thoujjh it contain a release of a former annuity. 689. Crowther 

° •'v. Wentworth, 

6 Bam. & C. 566. 
It is not necessary that the annuity deed should be executed Buckridge v. 
by all the parties to it before the memorial is enrolled, pursuant ^^'ght, 6 Barn, 
to 53 G. 3. c. 141. §2. &C. 49. 

By the 53 G. 3. c. 141. the memorial must contain the descrip- Darwin v. Lin- 
tion and places of residence of the witnesses to the annuity deed ; ^^'"' ^ ^^^n. & 
and therefore where the subscribing witness to a warrant of c" -1 ' n • 

^^ ^ ■ c • -i '^Ulltn V. Pnt- 

attorney, given as a collateral security tor an annuity, was de- chard, 5 Bam. 
scribed as C. R. clerk to W. A. of Great M. Street, in the county & A. 717. Sed 
of ikf., it was held insufficient, as C. R. did not reside in Great *^'^7Moo.582. 
M. Street. l ^'"f ^7- 

5 Lr. 4. c. 92. 

So where the memorial described one of the witnesses by the p, 
initial only of his Christian name, it was held insufficient. f^^^^ J „ 

& C. 1. ; and see Metcalf v. Bowes, 5 Barn. & C. 258. 

If the witnesses to the deed are accurately described in the Flight v. Buck- 
memorial, it is sufficient, though they did not see tlie parties ^"'Ige, ,~ Bing. 
execute ^ 8 J- F 215.; and see 

execute. g y^^. ^ p^jj 

155. G Taunt. 124. 

Now by the S G. 4. c. 92. it is enacted and declared, that 3 G. 4. c. 92. 
no further or other description of the subscribing witness or 
witnesses to any deed, bond, instrument, or other assurance, 
whereby any annuity or rent-charge is granted, is required in 
the memorial, besides the names of such witness or witnesses. 

By 5S G. 3. c. 141. § 4. it is enacted, that in every deed, bond, "♦js G.5. c.i4i. 
instrument, or other assurance, whereby any annuity or rent- § 4. 
charge shall, from and after the passing of this act, be granted 
or attempted to be granted, for one or more life or lives, or for 
any term of years, or greater estate, determinable on one or more 
life or lives, where the person or persons to whom such annuity 
shall be granted or secured to be paid shall not be entitled 
thereto beneficially, the name or names of the person or persons 
who is or are intended to take the annuity beneficially shall be 
described in such or the like manner as is herein-before required 
in the enrolment; otherwise every such deed, instrument, or 
other assurance, shall be null and void. 

113. Of 



250 



ANNUITY AND RENT-CHARGE. 



II 3. Of vacating and setting aside Annuities. 

[By the 1 7 G. 3. c. 26. § 3. it is enacted, " that in every deed, 
" instrument, or other assurance, whereby any annuity or rent- 
" charge shall, from and after the passing of this act, granted, 
** or attempted to be granted ; the consideration really and bona 
^^ Jide, (which shall be in money only («), and also the name or 
" names of the person or persons by whom and on whose 

grantor for the « behalf the said consideration or any part thereof shall be 
redemption oi - •' - . 

a former an- 
nuity, was 
holilen not to 
affect the le- 
gality of the 
consideration. 



17 G. 3. c. 26. 
§ 3. (a) The 
payment of 
part of the mo- 
ney to a third 
person at the 
request of the 



" advanced, shall be fully and truly set forth and described in 
" words at length ; and in case the same shall not be fully and 
" truly set forth and described, every such deed, S^-c. shall be 
" nidi and void to all intents and purposes."] 

Ex parte Fallon, 5 Term R. 285. A debt for goods antecedently bona fide 
sold, seems to be a good part-consideration. Shove v. Webb, 1 Term R. 732. Q,u. Whether 
a judgment recovered, Jaques v. Withy, 1 Term R. 557. or an assignment of a former 
annuity, be a good consideration? Ex pai'te Fallon, 5 Term R. 285. Duke of Bolton v. 
Williams, 4 Brp. Ch. R. 297. It is not necessary to state the consideration in more than one 
of the instruments which constitute the assurance. Hodges v. Money, 4 Tenii R. 500. 

Williams v. ||The court set aside the securities for an annuity, on the ground 

Hockin, jj^^|. jj^g consideration-money did not belong to W.^ as stated in 

the securities, but to C, and that the name of the person on whose 
behalf the money was paid was not truly set forth in the re- 
ceipt, C. claiming the consideration money and the annuity as 
his own. II 

[§ 4. enacts, "That if any part of the consideration shall be re- 
turned to the person advancing the same, or in case the consider- 
ation or any part of it is paid in notes, if any of the notes with 
the privity and consent of the person advancing the same, shall 
not be paid when due, or shall be cancelled aiid destroyed with- 
out being first paid, or if the consideration or any part of it is 
paid in goods, or if any part of the consideration is retained 
on pretence of answering the future payments of the annuity, 
or any other pretence ; in all and every of the aforesaid cases 
it shall and may be lawful for the person {b) by whom the an- 
nuity or rent-charge is made payable, to apply to the court in 
which any action [c) is brought for payment of the annuity on 
judgment entered, by motion, to stay proceedings on the judg- 
ment or action ; and if it shall appear to the court that such 
practices as aforesaid, or any of them, have been used, it 
shall and may be lawful for the court to order the deed, 
bond, S^c. to be cancelled, and the judgment, if any has been 
^ye that court « entered, to be vacated."] 
this summary -■ 

jurisdiction. Haynes v. Hare, 1 H. Black. 659. Ex parte Chester, 4 Term R. 694. 
Girdlestone v. ||This section is held not imperative on the court, as the 
& a'ei. ^™ words (unlike those in the three preceding sections) are, 
" it may be lawful for the court to order the deeds to be 
" cancelled," 8^c.\ it is discretionary in the court, either to vacate 
the securities in case of a violation of the section, or to do so 
on particular terms, or to refuse to do so according to the circum- 
stances of the case ; and so also as to the sixth section of the 

b2, G. 3. 



(6) But this re- 
lates only to 
the particular 
provisions of 
this section. 
On a defect in 
the memorial, 
any person may 
apply to the 
court. Saun- 
ders V. Har- 
dinge, 5 Terra 
R.9. ((;)The 
entering up 
judgment, or 
even giving a 
warrant of at- 
torney to enter 
up judgment in 
any court, is 
sufficient to 



2 Dow. & R. 
150. ; and see 
1 Taunt. 572. 



(D) Statutes respecting persortal Annuities. (Setting aside.) 251 

53 G. 3. c. 141. which is a transcript of the above clause. 
The words of the sections import on the face of them to refer to 
cases where improper practices exist, and they givp the court a 
discretionary power to examine whether unfair advantage has 
or has not been taken of the grantor. 

Therefore, where part of the consideration-money had been Barber v. Gam- 
deposited in the hands of the grantee's attorney till certain som, 4 Bam. 
houses, out of which the annuity was granted, should be com- ^ ^* ^si. 
pleted, but it appeared that the money deposited had all been 
paid over to the grantee in a short time after the date of the 
deeds, and there was no fraud in the transaction, the court re- 
fused to set aside the annuity; since this was not a fraudulent 
retainer contemplated by the act. 

So where A., an attorney, purchased an annuity of B., and Hurd v. Gir- 
having paid the consideration-money, received from B. the o'^tone, 
amount of a bill for business done, including by mistake a charge j Marsh 407 • 
for searches for incumbrances, which search had never been and see 5 Term 
made, it was held that the payment of this charge, so inadvertently *li. 597. 
made, was not a return of the consideration-money within the 
meaning of the fourth section of 17 G. 3. c. 26. 

And where the attorney of the grantor, at the time of payment Mootbam v. 
of the purchase-money, takes and keeps an unreasonable part How, 7 Taunt, 
of it for the expenses of the deed, this is not a ground on 
which the court will set aside the annuity ; the attorney having 
no connection with the grantee. 

But where the agent of the grantee retained a considerable Mence v. Ham- 
sum for expenses of preparing the deeds, and a further sum by ™ond, 6 Moo. 
way of advance to answer the first year's payment of the annuity, 
the Court of Common Pleas set aside the deeds against a surety 
for the annuity, on the ground that this was an illegal retainer. 
And they did the like in another case, although the grantee *^""3"?,- 
alleged he had given no authority for, and was ignorant of, the 1 Yi\i\s,. 2,34. 
retainer. 8 Moo. 109.; 

and see 1 Bing. 287. 8 Moo. 302. 2 Bing. .570. 

So also, where 910/., the consideration-money, was paid to Henry v. Taj- 
the grantor, who immediately returned it, except 1/., to pay off lor, 5 Bing. 
preceding annuities, and 160/., which the attorney who negoti- VV ^"'^ ^^® 
ated the bargain retained for his trouble, the court set aside the Ga,.%er 
annuity. s Barn. & C. 

165. Jones v Silberschildt, 4 Bing. 26- 

Where the grantor of an annuity, had on a mistaken claim of Jackson v. Ld. 
the grantee paid a half-yearly instalment for half a year sooner ^*I'!^s'"gton, 
than the deed required, it was held not to avoid the annuity. 

17 G. 3. c. 6Q. § 5. enacts, that a particular roll shall be ] 7 g. 3. c. 66^ 
kept by the clerk of the enrolments in Chancery, and that every § 5. 
memorial shall be enrolled in order of time, as it shall be brought 
in ; and the day, hour, and time of bringing the memorials into 
the office are to be specified on the roll. It also appoints the 
fees of the clerks. 

§ 6. enacts that all contracts for the purchase of annuities § 6. 

from infants shall be void, and incapable of confirmation after 
the infants shall come of age : and makes the procuring or soli- 



252 



ANNUITY AND RENT-CHARGE. 



§'i. 

§3. 
§4. 



§5. 
§6. 
$7. 

$8. 
$9. 

Crossleyv.Ark- 
wright, 2 Term 
R. 603. ; and 
see 5 Terra R. 
9. 



Shove V. 
Webb, 1 Term 
R, 732. 



Waters v. 
Mansell, 
3 Taunt. 56. 



Scurfield v. 
Gowland, 
6 East, 241. 



Hicks V. Hicks, 

3 East, 16. 

4 Esp. 196.; 



citing an infant to grant any life-annuity, or to promise, or other- 
wise engage to ratify it when he comes of age, an indictable 
■ misdemeanor, punishable with fine and imprisonment : as does 
§ 7. the asking, demanding, or taking by any solicitor or other 
person of more than 10^. per cent, for procuring money to be 
advanced on any life-annuity. 

By the act 53 G.3. c. 14-1. we have seen that the statute 
1 7 G. 3. c. 26. is repealed, except as to annuities granted previous 
to the passing of the act ; but the principal provisions of the 
former act are in substance re-enacted by the latter, with some 
additional regulations. 

By § 2. the time for enrolment is enlarged to thirty days, and 
a form of memorial is given. 

By § 3. it is provided, that if any such annuity shall be grant- 
ed to or for the benefit of any company exceeding ten persons, 
for the purpose of granting or purchasing annuities, it shall be 
sufficient to describe them by their usual firm or name of trade. 

§ 4. enacts, that where the person to whom the annuity is 
granted shall not be entitled thereto beneficially, the name of 
the person intended to take it beneficially shall be described in 
the enrolment, otherwise the deed or instrument shall be null and 
void. 

(For § 5. see ante, p. 245.) 

§ 6. is to the same effect as § 4. of the former act. [ante, p. 250.) 

§ 7. is to the same effect as §5. of the former act. [ante, p. 251.) 

§ 8. is to the same effect as § 6. of the former act. {ibid.) 

\ 9. is to the effect of § 7. of the former act. 

[Where the securities are made absolutely void by the 
statute, a stranger may take advantage of any irregularity ; and 
therefore where a^eiijacias issued against a person in possession 
of goods under a deed given i?iter alia in consideration of an 
annuity, it was holden that the sheriff, having notice that the 
annuity was not registered, was justified in returning nulla bond. 

And where the contract is avoided merely for irregularity, 
the consideration-money may be recovered back from the 
grantor ; whether such consideration be wholly in money, or 
for a debt antecedently due for goods sold. But qu. as to 
goods sold at the time of granting the annuity ?] 

II If the grantor has communicated to the